Legalizing Marijuana: How Can Businesses Drug Test Employees?

Does the legalization of marijuana in some states create a larger challenge for employers who drug test?

This is the question that many employers have had to ask in the past several years, as more and more states and cities have legalized or decriminalized marijuana, both for medical use and for recreational use. These are the areas where marijuana use is currently legal or decriminalized in some form:

• Colorado
• Washington
• Oregon
• Alaska
• Nevada
• Delaware
• Maryland
• Rhode Island
• Vermont
• Illinois
• Maryland
• New Hampshire
• Louisiana
• Minnesota
• New York
• Missouri
• Pennsylvania
• Texas
• Washington D.C.

There are also several cities in states that have not legalized marijuana which have adopted decriminalization laws, such as Tampa, FL, Toledo, OH, and Wichita, KS. In all of these places, there are less legal hurdles in place to stop employees from using marijuana. And this can present an issue for an employer.

How Marijuana Affects Employees and the Workplace

One of the reasons that marijuana has become more acceptable to the legal system is because of growing evidence that marijuana is not only not as harmful to the human body as previously thought, but also evidence that medical marijuana can be a miracle treatment for many diseases and conditions. While this evidence is all true as far as science understands it, it doesn’t mean that there are no negative side effects that come with using marijuana that can affect the workplace. Just like using a prescribed medication can cause potentially dangerous side effects, so too can marijuana. Namely, these are the types of behaviors and side effects that are seen in employees who use marijuana before or at the workplace, or regularly outside of the workplace:

• Tardiness or absenteeism
• Impaired motor skills
• Slower reaction times
• Impaired decision-making skills
• Increases in workers’ compensation claim filings

In some cases, these behaviors can hurt the productivity and morale in the workforce. For example, a coworker who is tardy or absent more often makes it harder for others to keep up with production or services because they have a heavier workload.

Other side effects go beyond affecting productivity and can be downright dangerous. The effect that marijuana can have on the motor skills, reaction times, and decision-making skills can lead to workplace accidents. These put more than just the one employee in danger; their coworkers and any customers or other parties nearby could be harmed.

If your business relies on your employees regularly interacting with customers, you may also have to battle the social stigma that many people still attach to the use of marijuana. If an employee is visibly high or smells of marijuana, you may lose sales or receive complaints.

Employers’ Rights Regarding Drug Usage and Testing

In any state, regardless of the legality of marijuana, employers do have the right to require that all employees refrain from any kind of recreational drug use. Zero tolerance policies are still legal, meaning that if you so choose, you can require that all employees pass random drug tests, and you have the legal right to fire any that do not pass. You also have the right to require that employees agree to conduct regulations outside of work, especially for industries where off-site networking is common.

However, the Americans with Disabilities Act does disallow the discrimination of qualified employees who are prescribed medication for medical use. Some employers have questioned if this law extends to the use of medical marijuana. As of right now, the courts have generally stated that the ADA does not include the use of medical marijuana. For example, the Oregon Supreme Court ruled in favor of the employer in Emerald Steel vs. Bureau of Labor and Industries, stating that the employee who used medical marijuana was not protected by the ADA.

Similar rulings have happened in California, Michigan, and Washington. It’s unclear if this trend will continue as more states adopt medical marijuana laws. There has been a precedent set for states requiring employers to allow the use of medical marijuana. New York, Arizona, Delaware, Minnesota, and Nevada all protect employees who use medical marijuana from being fired due to a failed drug test unless the business is required by their industry or federal law to maintain a totally drug-free workplace.

Effects of Marijuana on Employee’s Health

Beyond the use of medical marijuana for qualified conditions, there are reasons beyond the danger to your business and workplace to discourage the use of recreational marijuana. One of these is the effect that marijuana can have on the health of a person. While it’s largely accepted that smoking marijuana is not as harmful as we once believed, there is still medical and scientific proof that using marijuana can be harmful.

Some of the ways that marijuana can affect users include:

• Decreased short-term memory.
• Development of paranoid behaviors or anxiety.
• Irritation of the lung tissue, which may lead to diseases and illnesses similar to smoking tobacco, such as bronchitis.
• Development of an erratic or accelerated heartbeat, and increased risk of heart attack.
• Lowered immune system.
• Difficulty concentrating, making decisions, or reacting to stimuli.

It’s important to note that many of these health concerns are not applicable to medical marijuana if it is not smoked. The harm to the lungs, heart and immune system is largely related to the inhalation of toxic smoke; if medical marijuana is taken via pill or vaped rather than smoked, it may not carry these particular health risks.

If employees are not healthy, they won’t be able to be the best employees they can be. This translates into absent employees and tardy employees, yes; but it also means that your workplace won’t be as energized, as creative, or as productive. The “mood” of a single employee can quickly affect the rest of the team, sapping the entire workplace of the collaborative energy that you need to keep your team doing their best work.

Healthy, energetic workplaces also attract better applicants when it comes time to make new hires. If your workplace has a reputation of being focused on the health of individuals, and of being a place where enthusiastic work is appreciated and rewarded, you are more likely to be sought out by the types of people who are willing to be involved employees, because they appreciate the care for their health and the environment.

How to Combat Marijuana Use in the Workplace – Even in a Legalized State

Drug testing is nothing new for the workplace. At least 50 years have passed since the criminal justice system began using drug tests, and drug testing in the workforce followed soon after. Due to the rise of legalized medical and recreational marijuana, it is getting harder to know exactly what the employer’s rights are when it comes to positive drug tests.

While some states have protected medical marijuana users from being fired after failed drug tests, other states have sided with employers, establishing their rights to fire, or refuse to hire, employees who cannot pass a drug test. In addition to making the workplace unsafe for themselves and those around them, using recreational marijuana can be harmful to the health of your employees.

So what can you do to motivate your employees to “just say no” to marijuana? Particularly in a state that has recently legalized recreational marijuana, it’s impossible to assume that your employees will choose to stay away from marijuana on their own. Here are some ways that you can combat drug use in your workplace, in order to maintain safety, healthy employees, and a workplace culture that aligns with the needs and values of your company.

  • Clearly Defined Policies: The first step to combating drug use in the workplace is to clearly define your policies. You’ll need to explain precisely what is and is not allowed, if conduct off the job must conform to certain standards, how you’ll test or supervise for drug use, what actions will be taken if an employee violates these policies, and what programs are in place to help employees avoid drug use. You may want to add a brief description of the legal ruling that you are using to back up your decision to fire or not hire anyone who can’t pass a drug test, and you may also want to have a separate clause describing your policies on the use of medical marijuana. Ideally, this policy should be signed by every employee, indicating that they have read and agree to follow the document.
  • Random Testing: Random drug testing is the only way to be absolutely sure that you understand what need there is in your workplace to address drug use. If a drug test is announced before it is administered, it’s much easier than many employers realize to fake the results. Random testing ensures that accurate results are produced. Having a random test policy is also one way to clearly indicate to employees exactly what the company’s stance on recreational drug use may be.
  • Make It About Them: It’s easy to get caught up in the ways in which marijuana use can harm your bottom line. But people are better motivated by something that directly affects their own lives. Rather than making your company drug policy and random drug testing the focus, try to focus on creating a health-focused workplace. Institute programs that encourage healthy lifestyles, or offer amenities like a work gym that motivate people to consider their health.
  • Better Supervision: All the supervisors in your company need to be getting specialized training in how to identify a person who is using drugs. Some marijuana smokers can’t be identified by smell or sight alone; for some, slightly erratic behavior may not be the out of the ordinary. For this reason, supervisors should be looking for specific behaviors, like many absences, or slower reaction times in small accidents. If your supervisors can detect signs of possible drug use before a random testing period is due, they could potentially prevent accidents and workers’ compensation claims.
  • Reporting Program: No, this doesn’t mean creating a culture of “snitching” or whistleblowing within your own company. Instead, it means setting in place a program wherein employees who are struggling with recreational marijuana can report and seek help. Counseling, group therapies, alternative therapies, and even a few sessions covered by an addiction specialist can all be costs that an employer may be willing to pay in order to create a healthier workplace.
  • Positive Motivation: Finally, there is something to be said for offering positive motivations for passing random drug tests. For example, quarterly bonuses for clean drug tests, or requiring that an employee has 100% clean drug tests in order to be considered for a promotion. These types of motivations probably won’t stop the addicted marijuana smoker from violating policy; but they can be great deterrents for social smokers, who would value their paycheck and position within the company more than the occasional smoke.

Changes Are Coming

As more states grapple with the legalization of medical marijuana, and the decriminalization of recreational marijuana, it’s likely that there will be more changes to the laws and regulations regarding marijuana in the workplace. If the country adopts a legal stance as a whole, it may be that specific laws are created to protect employees who use medical marijuana. However, there are some industries, such as healthcare, where it seems less likely that allowing the use of a mind-altering drug would ever be protected.

As of right now, the best thing to do as an employer is to be sure you understand the laws in both your state and your city regarding the use of marijuana and check out any rulings that your state’s supreme court has made regarding employment and marijuana. Be sure that you have all the information you need regarding the drug policies within your specific industry, so that you are prepared with accurate information to help you create your own policies. Exercise your right to keep your establishment drug free, and you’ll be able to largely avoid a potentially hazardous and unhealthy environment.

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