Marijuana Legislation Leaves Drug Testing Up in Smoke

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Marijuana Legislation Leaves Drug Testing Up in Smoke 

Ongoing changes in attitudes and laws regarding marijuana are leaving some employers and HR without a feasible drug policy.

HR policies have a direct impact on your recruiting, engagement, and retention, and your drug policy is an important one.  At present, 28 states and the District of Columbia have passed legislation allowing medical marijuana, and eight of those states relaxed their laws to allow recreational use as well.  Whether your company operates locally, nationally, or globally, the opportunity for confusion is ripe.

The cannabis, or 4/20, industry is booming. As one of the first states to legalize marijuana, news reports put earnings by Colorado businesses at $1.3 billion in 2016 alone.  Yet, change at the federal level looms, as marijuana remains a Class 1 drug along with the likes of heroin, LSD, and others.

Federal guidance issued in 2013 created a workable, but uneasy, gray area that allowed states to enforce their laws and regulations, while federal agencies maintained authority to step up enforcement.  The newly confirmed United States Attorney General, Jeff Sessions, has declared, “Good people don’t smoke marijuana,” creating questions about the potential for future attempts to corral a horse that has long left the barn.

In the meantime, employers, HR, applicants, and employees are in a haze about federal rules, and state and employer policies.  Here are some points to consider: 

  • Federal policy may already impact your drug policy: If you are a federal contractor or grantee, or you have the potential for being awarded a federal contract for goods or services, your workplace may already fall under the Drug Free Workplace Act. The Act requires you to establish, maintain, and publicize a zero-tolerance policy toward drug use in the workplace. This means working with current and prospective employees to ensure they understand employment is conditioned on compliance.
  • Stay clear on union and insurance agreements: If you have insurance, union, or other agreements based upon zero-tolerance and drug testing, be mindful of creating policy that does not support these contracts to the letter.
  • Know your state laws: If no other law or contract directs your drug policy, state law can offer an assist on how to form your policy and avoid potential claims of discrimination.  In some states, like New York, it is a violation to discriminate against employees or applicants who hold a medical marijuana card.
  • Drug-free is tough to vet: If your business involves manufacturing or the operation of machinery, you probably have drug-testing policies in place.  Because an employee can test positive for marijuana use even if they are not imbibing on the job, the role of policing—and proving—drug use becomes difficult.
  • Uses of marijuana—medical and recreational—are not the same: If your state has legalized marijuana for medical and recreational use, a well-crafted HR policy needs to spell out the expectations of company management.

For most companies, working while impaired is a drain on productivity, communication, group morale, and forward movement.  In the absence of an employment agreement or other specialized arrangement, most employers and their employees have an “at will” working relationship.  This means, an employer can terminate an employee (if they are not in a protected class) at will, just as an employee is free to walk. 

Management and HR are responsible for taking the lead on developing a drug policy that is legal, and that reflects your industry segment, long-held policies, and workplace culture.  Keep these tips in mind:

  • Be sure you create and distribute a written drug policy.
  • Work with an experienced labor attorney to craft a clear policy that includes definitions, expectations, and consequences.
  • Incorporate the policy into your recruiting process, and be clear about your policies with job candidates.
  • Understand how you will handle violations of the policy before they occur. Your policy must be applied uniformly across the workplace.

While marijuana legislation, especially on the federal level, remains unpredictable, take positive steps to improve engagement with applicants and employees by clearing the air of uncertainty around your company drug policy.

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