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The Ever-Evolving Marijuana Employment Laws

April 07, 2021 | By Jeramy Gordon

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Recent years have seen a significant culture shift in how the use of marijuana is viewed. Many states have medical marijuana programs while others have legalized recreational marijuana altogether, with more states poised to follow. In light of these changes, companies around the country are re-evaluating their drug testing policies as they relate to cannabis. If you are considering making a change to your organization’s stand on marijuana, here’s what you need to consider regarding the ever-changing marijuana employment laws.

Marijuana Employment Laws: Legal or Illegal?

The fact remains that, at least where the federal government is concerned, cannabis remains a Schedule I drug. In states that have legalized marijuana, federal and state laws on the subject directly conflict. What are the ramifications of this conflict over recreational and medical cannabis for employers? Because marijuana is still an illegal substance federally, its use may still be prohibited by employers. While the Supreme Court has ruled in favor of the employer in the past, laws are changing on a regular basis, trending toward favoring employees.

The takeaway: Marijuana is illegal at the federal level, but the rise of state laws and local ordinances make the situation anything but clear. Always be sure to consult a legal advisor about your marijuana testing policy.

What are the Arguments for Testing?

Safety

One of the main arguments for marijuana testing is safety. Experts at the National Institute on Drug Abuse state that marijuana use induces a number of short-term effects including body movement impairments, thinking and problem-solving difficulties, memory problems, and an altered sense of time. It can also affect attentiveness, motor skills, and reaction times, effects that are especially alarming for those working in the transportation industry. In addition, studies continue to show clear links between adverse workplace events and marijuana use. One such study found employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries, and 75% greater absenteeism.

Opponents of marijuana testing say that recreational marijuana use should be treated like recreational drinking; taking the “what happens at home on the weekend should stay there” approach.

It’s important to understand that there are critical differences that make this comparison to alcohol dangerous and irrelevant. For example, unlike alcohol, cannabis will show up in a urine test several days, maybe even longer, after use. This means that someone who uses pot on the weekend could still fail a drug test days later, significantly complicating employer cannabis laws.

For some individuals, the pot haze can hang around for much longer, meaning that weekend use has the potential to leave people still impaired when Monday rolls around.  The important message here is that marijuana and alcohol are two completely different substances and must be treated differently when it comes to workplace safety.

No one, or very few, at any rate, is making the argument that marijuana use while actually on the job is acceptable. But when it comes to marijuana, there are no studies that indicate when people who use cannabis at home are safe to work. Employers are responsible for their employees during working hours; thorough drug screens mitigate the risks associated with impaired employees and provide protection against legal liability.

Compliance

Private employers can choose their own drug testing policy, but federally regulated industries must comply with federal laws. For example, the Department of Transportation (DOT) and the Department of Defense (DOD) require drug testing, including marijuana.

The takeaway: Social acceptance of marijuana has nothing to do with its ill effects; while the perception of marijuana use and its risks may have changed, the reality of its negative effects on the workplace has not. Marijuana testing remains critical to creating and maintaining a safe, drug-free environment.

What are the Arguments Against Testing?

New Laws

Some localities have passed laws prohibiting some employers, excluding those with federal mandates, from requiring pre-employment drug tests that include marijuana. Laws are passing that may prohibit pre- or post-employment marijuana testing, however, these laws differ from jurisdiction to jurisdiction and are sensitive, in some cases, to job type, i.e., safety vs. clerical.

Competition

The struggle to find and retain good employees is intense and many businesses have decided that they cannot afford to lose good talent because of off-the-job recreational marijuana use. Some organizations across the country have chosen to exclude marijuana from their drug screen panels while continuing to test for cocaine, opiates, amphetamines, and other substances in an effort to be more competitive and keep up with changing attitudes.

The takeaway: If you are operating in a competitive labor marketplace, and you are not subject to federal drug testing mandates, take the time to reexamine your marijuana testing policy to determine what is in the best interests of your organization. 

What Can You Do?

Despite the uncertainty surrounding this issue, there are concrete steps your business may consider to respond to the shifting sands of marijuana laws:

  • Create a culture of zero tolerance. Do not allow any impairment on the job from any substance..
  • Define safety and non-safety positions. Having this clear delineation in place may prepare you to create and defend your marijuana testing policies.
  • Write a clear testing policy. This could include who you will test, which positions require tests, when you will test, penalties for failed tests, and accommodations you are willing to consider.
  • Train supervisors. Offer training on how to identify and respond to potential substance impairment.
  • Educate. Take steps to ensure your employees understand your drug policies and procedures.
  • Do your due diligence. Have your legal team regularly review your drug testing policies and procedures by location.
  • Consult with experts. The team at Accurate stays abreast of all the latest developments relating to drug testing and marijuana. We have a Marijuana Webinar on April 20, 2021, where our team will share what we know about pre-employment marijuana testing, discuss best practices, and answer all your questions. Follow this link to sign up for the webinar to learn more.

The takeaway: While things are uncertain, standing idly by is not an option. A solid policy today could prepare you for whatever lies ahead.

Trust Accurate

Drug testing remains a critical tool for fostering a safe workplace. How marijuana eventually plays into that remains to be seen. At Accurate, we strive to keep you apprised of the latest developments in this evolving issue.

Want to learn more about marijuana employment laws? Sign up for our April 20, 2021, webinar with Jennifer Mora of Seyfarth Shaw: Weed @ Work, What Employers Need to Know About Marijuana in the Workplace.

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