Addressing Marijuana Usage and Testing

Recreational cannabis legalization is rolling out across the United States, and many employers are faced with a big, hazy question: how should they address drug testing in the workplace? Eleven states have legalized recreational marijuana and 33 others have legalized medical marijuana. It’s safe to say that in the next few months or years this topic will hit nearly every employer nationally.

Your leadership team may have questions as you unpack this issue. How is cannabis influencing safety and productivity on the job? Is your company at risk for a lawsuit if medical marijuana use doesn’t align with the organization’s zero-tolerance drug policy? How can you develop a defensible policy that is logical and effective?

It’s understandable to feel overwhelmed by these questions, but it is important to know that you have options for ways to structure your company’s policy on cannabis usage outside of the work environment. We will weigh the pros and cons of pre-employment testing, random testing, selective testing, and not testing at all.

Pre-Employment Testing

Most corporations that rely on manual labor for profit, such as transportation or advanced manufacturing, require a drug screening prior to hire and then routinely afterward. Historically, testing positive for a drug in any category (amphetamines, opiates, narcotics, hallucinogens) has been grounds for termination or retraction of a job offer.

However, these zero-tolerance policies as a barrier to entry are becoming tricky. With the onset of cannabis legalization, many state and local jurisdictions are implementing anti-discrimination laws that protect employees who might test positive for marijuana in mandatory employer screenings. Under these laws, a person could file a hefty lawsuit resulting in expensive settlements for corporations that deny a job offer to a medicinal or recreational cannabis user. Because of this legal risk, many employers are slashing the upfront drug testing to attract and successfully onboard more people, and avoid lawsuits.

Random Testing

It is common sense that employees shouldn’t be impaired while on the job, especially in manual labor operations. However, it is nearly impossible to determine whether someone is high at work with a drug test, because cannabis can remain in the system for up to 30 days or more following even a single usage. The majority of court cases indicate that employers can’t fire someone for using marijuana when they aren’t on the clock. Because of this, more employers will need to use observation and performance review tactics to make termination decisions, and then be prepared to face any legal repercussions the employee may initiate.

For many employers, the risk of not testing is far greater than the implications of hazardous workplace accidents as a result of cannabis impairment. For example, Uber uses routine, random drug screenings to ensure the safety of its independent drivers and their passengers. It is up to each organization to weigh the risks involved in safety, legal, and productivity loss when determining if a random test initiative is the right fit.

No Testing/Selective Panel Testing

If your business or organization does not use manual labor to produce revenue, an option is to forgo testing entirely. For example, in offices and other professional environments the risk of workplace accidents due to impairment is much lower.

Due to legalization and shifting cultural perceptions, many employer policies treat cannabis usage in an employee’s personal life as a non-issue, comparing it to alcohol. Many millennials say they prefer to marijuana to alcohol, and as that generation ages into corporate leadership roles, their attitudes will begin driving corporate policy.

If your team shares a relaxed perspective on cannabis, but is not quite ready to forgo drug testing entirely, a great option is a selective panel test. These do not test for THC (the active ingredient in cannabis), but can register other illegal substances. Selective panels are available to an employer in up to 14 criteria. This option can ensure workplace safety and productivity without getting into the stickiness of cannabis use.

Read more:

• Why drug testing at work ‘is the new don’t ask, don’t tell’
• All You Need To Know About Drug Testing In Uber and Transportation Services
• Why millennials prefer cannabis to booze: ‘Zero enjoyment out of drinking’
• Drug Test Panels

Originally featured in UBA’s September 2019 HR Elements Newsletter.