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Your Drug Testing Program: Is Marijuana In or Out?

June 05, 2019 | By Accurate Background

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With a competitive labor market, some companies are struggling to fill positions and are re-examining their hiring criteria to adapt. In addition to salary, benefits, and corporate culture changes, some companies are re-evaluating their drug testing policies in an effort to attract more workers. One such trend is the removal of marijuana from company drug testing programs. Is this drug testing program change something you are considering at your organization? Let’s look at some considerations on the topic.

Why are employers still testing for marijuana if it’s legal?

Hold that thought. Marijuana is not legal everywhere and remains a Schedule 1 drug that is illegal under federal law. More importantly, while it may be legal, marijuana is still unquestionably bad for business. Scientific studies show clear links between marijuana use and adverse workplace events. One specific study of postal workers who tested positive for marijuana on pre-employment drug tests observed these workers experienced 55% more workplace accidents, 85% more injuries, and 75% higher rates of absenteeism compared with their more sober peers.

With employee safety and well-being in mind, it’s clear that marijuana testing is critical to creating and fostering a drug-free workplace environment. Employers are responsible for their employees during work hours, and by thoroughly screening each new employee, they mitigate the many risks associated with a potentially impaired candidate. Companies also avoid legal liability when they have proof of drug-free employees.

It’s also important to note that, while private employers have the freedom to choose their drug testing policy, drug tests are required in industries that are federally regulated. The Department of Transportation (DOT) and the Federal Aviation Administration (FAA) are two such entities that require drug testing, including marijuana. And, while some employees have filed legal challenges to marijuana testing, case law continues to consistently side with employers, indicating that employers still have the right to reject or reprimand employees who test positive for marijuana.

The takeaway: even though the legality of marijuana has changed in some parts of the country, it’s negative impact on the workplace has not. It remains in the best interests of employers everywhere to screen for marijuana in order to maintain a safe, drug free workplace.

Are there good arguments for not testing for marijuana?

Changing laws is one good reason. Some localities, like the state of Nevada and the city of New York, have barred employers from conducting pre-employment marijuana tests, while maintaining exemptions for safety sensitive or federally mandated positions. There are currently nine states plus the District of Columbia that have legalized the recreational use of marijuana. However, laws vary from state to state regarding discrimination in the workplace for marijuana use. For instance, on February 1, 2018, Maine became the first state to protect employees from marijuana discrimination at work. Employees can no longer be fired or not hired for marijuana use off the clock. As these types of laws are put in place it is important to continue to evaluate how new laws may impact your current employment drug testing program. If your city or state has changed its laws regarding marijuana testing, your company practices will need to reflect this.

Another good reason is the competitive labor market. Many people use recreational marijuana responsibly, just like they might use alcohol. Can you afford to lose a good candidate because of their weekend habits? To be clear, you have every right to expect that your employees not show up for work impaired by any substance, be it marijuana, alcohol, or anything else. But many employers are asking themselves if they have the right to require anything beyond that. What makes this question slightly more complicated is that, unlike alcohol, marijuana can continue to impair function for hours or even days; it’s effects on users varies wildly and can change over time. While it’s universally agreed that someone who was drunk on Saturday is totally unimpaired Monday morning, the same cannot be said with certainty for someone who was high on cannabis.

Nevertheless, some companies in the hospitality and restaurant industry are removing marijuana from their drug testing screening while continuing to test for drugs such as cocaine, opiates, and amphetamines to ensure company and employee safety. Many employers are adding other drugs like ecstasy and semi-synthetic opioids, like Oxycodone, to their screening criteria. AutoNation, one of the U.S.’ largest auto-dealers, decided to remove marijuana from their testing in 2018. AutoNation said they made the decision to remove marijuana to be more competitive in the labor market as well as keep up with the public’s evolving attitude towards the substance.

What Should You Do About Marijuana in the Workplace?

The following are some things your company can do to respond to rapidly shifting views on marijuana testing in the workplace:

  • Don’t tolerate any impairment on the job.
  • Delineate all safety and non-safety sensitive positions in your workplace. Having this clear list in place will help you apply and defend any restrictive marijuana testing policies.
  • Outline your testing policies, penalties for violations, and any accommodations you are willing to make.
  • Define policies and offer training for supervisors on how to identify and respond to potential substance impairment, marijuana or otherwise, in their staff.
  • Educate your employees on your drug policies and procedures.
  • Have your legal team regularly review your drug testing policies and procedures for compliance. Be aware that if you operate in different states, laws will likely vary by location.

Consult with Experts
Ultimately, each employer must make the decision on a drug testing policy. It’s important to review your state’s laws and regulations as well as federal law. To ensure your drug testing practices are compliant, consult with both your drug testing vendor and your legal team to ensure there is no risk associated with your drug testing policy. Accurate is your trusted partner for employee drug testing. Reach out to us today to discuss how we can help you maintain a drug free workplace.

*The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.

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