If you’re operating a business in a state that has legalized recreational marijuana, it may be time to reexamine your current marijuana testing policies. What are other businesses doing? How can you keep your work environment safe? Let’s take a look.
Federal Laws
If your business serves as a federal contractor, or is involved in the transportation industry, the laws are still clear. Marijuana is illegal at the federal level, and zero-tolerance policies are the safest. In transportation, it’s even clearer. Department of Transportation regulations are stringent: any use of marijuana by drivers is automatic grounds for termination.
Reasonable Suspicion
If you’re not in the transportation industry or a federal contractor, and your state has legalized marijuana, you have significantly more options. And one that many businesses are taking is a move to marijuana testing based on “reasonable suspicion.”
The idea is that what employees do on their own time is their business, but what they do on company time is the company’s concern. But it does affect their job search. So any policy changes pre-employment testing should be clear to candidates and applicants. If there is reason to suspect that an employee is under the influence while at work, then testing may be appropriate.
But then you can run into issues with defining reasonable suspicion, as well as how to prove that the marijuana was consumed at work rather than during off hours. Consider partnering with a medical review officer to help you walk through various hypothetical scenarios, as well as to review actual positive drug tests.
State Laws
Many states that have legalized medical and/or recreational marijuana also protect employees from adverse actions based on positive marijuana tests. These laws can be highly complex. Unless you decide to forgo marijuana testing altogether, it’s vital to work with a skilled and knowledgeable attorney in your state to draft policies that do not run afoul of these laws.
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