It’s Time to Reconsider Your Policy for Marijuana Testing

So much in the world of absence management has changed, including an employer’s right to test employees for marijuana. Ten years ago, we could all rely on zero tolerance and drug testing policies when it came to what we tested for and when, particularly with regard to pre-employment testing. That is no longer the case as most states allow some type of marijuana use.

For example, 37 states, three territories, and the District of Columbia have legalized medical marijuana while 19 states, two territories, and the District of Columbia allow the adult use of non-medical or recreational marijuana.^1,2 In addition to these laws, we see more protections for off-duty use, which puts employers in a tough position with testing for marijuana. In fact, the more you dig into the issue, the murkier it gets when it comes to what employers can do.

For example, what can you do with a positive marijuana test in light of laws that protect an employee’s right to use marijuana for recreational and/or medical purposes; tests that don’t pinpoint when the drug was used (on company premises or during off-duty hours); and the knowledge that marijuana can stay in the body for weeks or months.³

In addition, we don’t have a legal or medical definition for what constitutes marijuana impairment, and most people (68%) believe marijuana use should be legal⁴ and protected, which can affect recruitment, hiring, and retention in a difficult employment market.

With that stacked deck, it’s not surprising that more employers are removing marijuana tests from pre-employment panels. They’re not making the decision lightly, as noted during my “To Test or Not: Employers Question Value of Including Marijuana in Drug Panels” podcast with Kathryn Russo, an attorney with Jackson Lewis, who describes the uphill legal battle employers face with testing. She set the stage for our conversation in a recent @Work magazine article⁵ that helps employers avoid legal claims in this confusing environment.

Reasonable Suspicion

For example, while more employers are removing marijuana from pre-employment panels, they might be testing for it after accidents and for “random” and reasonable cause. The real question is how they’re making those decisions.

As you consider options in the context of state and local laws, ask yourself what you do with a positive marijuana test result. In other words, if you get a positive result from a post-accident test and the employee is based in a state where recreational marijuana is legal, what is your recourse?

Saying that enforcement in states that have medical and recreational marijuana laws is difficult is an understatement. As a result, it’s time to shift our focus to helping supervisors recognize signs of impairment at work. We need to ensure they have the knowledge, confidence, and resources to document and react to suspected impairment and to escalate those situations when necessary to ensure a safe work environment.

As someone who walked in these shoes when I was responsible for drug-testing programs at a hospital system, I appreciate the challenges associated with marijuana drug testing, and suggest reviewing employee handbooks, revisiting how marijuana testing is addressed in company policies, and considering how you educate and communicate with employees about marijuana use.

Federal contractors must ensure their policies align with the Department of Labor (DOL) Drug Free Workplace Regulatory Requirements.⁶ And all employers should ensure their policies support organizational goals. For companies that act as federal contractors, the DOL requirements are clear. Employers must notify employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee’s workplace and specify that action that will be taken against employees for violations. How does your organization communicate its policies to employees?

While all employers should review their contracts to see whether and how marijuana is mentioned, they should also assess whether their drug policies — and testing — for marijuana match requirements or go too far given what we know now.

The tide seems to be turning against employers testing for marijuana, so we need to adjust our approach to ensure people are safe. And if you land on supervisor training, consider how many of your employees understand the term “reasonable suspicion” and whether they know what to do if they suspect impairment at work.

To boost the number of supervisors in the know, include the definition of reasonable suspicion in company drug policies and test supervisors on a regular basis to ensure they have not only read the policy but know how to enforce it.

As a reminder, free training is often available through vendors that manage Last Chance or “Firm Choice” Agreements⁷ (documents that are signed by employers and employees, who agree to get treatment to avoid termination). It may also be available through employee assistance programs.

Tried-and-True Solutions

While there are a lot of moving parts and pieces, nuances, and considerations to this issue, we can rely on effective policies about drug use, impairment at work, and documentation of behaviors that lead to testing.

Good documentation is essential if a test comes back positive since employers are on shaky ground when they take disciplinary action because of a positive marijuana test. That is due to this powerful (and currently unanswerable) question in states that protect off-duty use: When did the employee use the drug? And while it will always be hard to navigate, a good medical review officer can be essential in this scenario.

Citing behaviors — not just a test result — that lead to testing and disciplinary action might be your safest approach to dealing with employees who are suspected of being under the influence of marijuana, as well as staying on top of legislation about what employers can do in states that protect an employees’ use of marijuana when they’re not at work. The fact that some states prohibit marijuana testing is a red flag that times have changed, and employers must adjust.

And we’ve had plenty of time to do it. California legalized medical marijuana in 1996, and Colorado and Washington state were the first to pass recreational marijuana laws in 2012.^8,9 That was the time to reevaluate policies and redesign tactics to ensure safe work environments. Those who didn’t do it then are playing catch up at a time when we need to be focused on the future.