Possession or use of marijuana remains illegal under federal law. But state laws are changing at a dizzying speed, including some that now limit a company’s ability to fire an employee for failing a drug test. Courts have begun siding with workers who say their off-duty use of cannabis for medical reasons led to their unfair dismissal. Recent court cases have left employers facing discrimination charges for acting against workers who flunk marijuana tests. Nevada in June limited rejecting job applicants for failing a test. Even cities are getting into the act, with the New York City Council voting in April to ban marijuana testing for job applicants (with exceptions for such jobs as public-safety workers).
Cannabis has long been heralded for its calming properties. But lately it’s having quite the opposite effect on HR professionals, as they navigate the myriad state laws and court cases affecting the controversial substance to create drug-testing policies and procedures.
State laws aside, experts agree that employers have a right to implement drug-free workplace policies.
Californians voted to legalize medical marijuana in 1996. Now at least 33 states have a comprehensive medical marijuana program. Colorado and Washington legalized cannabis for recreational use in 2012; nine other states, and Washington, D.C., followed suit. About 24 million Americans ages 12 and older are current users of marijuana, according to a 2016 Substance Abuse and Mental Health Services Administration survey. The numbers have increased mostly due to more marijuana use by adults 26 and older.
The widespread use is evidenced by the increasing number of people failing marijuana tests, especially in states where recreational use is legal.
Best Practices for Employers
- Don’t tolerate marijuana use on the job, just as you wouldn’t tolerate alcohol use.
- Train managers to spot signs of impairment.
- Think carefully about the type of test your company uses and stay on top of developments in the technology of testing.
- Talk to a lawyer about relevant state laws before setting policies and testing rules.
- For companies operating in different states, know that testing policies may need to vary by location.
- Educate employees about the company marijuana-use policy and the repercussions for failed tests, including random, post-accident or reasonable suspicion tests.
For additional assistance with this topic, please reach out to the Centricity HR Team
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1. Lytle, T. (2019, August) Marijuana in the Workplace. Retrieved from https://www.shrm.org/hr-today/news/hr-magazine/fall2019/pages/marijuana-and-the-workplace-its-complicated.aspx