As legalization of marijuana use in the United States continues to rise, employers find themselves in a tricky position when tasked with maintaining the productivity of their workplace and the safety of their employees, clients and data. Despite the wave of marijuana legalization, federal requirements for drug-free workplaces still require that employees test negative for marijuana along with other illegal drugs. Here is what employers need to know.
What do employers need to know about marijuana in the workplace?
Marijuana has been legalized for medicinal use in 34 states and in the District of Columbia and 10 states plus the District of Columbia have legalized recreational marijuana use. Since marijuana production, manufacturing, labeling and distribution has yet to be standardized in the U.S., its use and safety continue to remain a foggy area.
How do you asses a marijuana user’s level of impairment?
Recreational marijuana is often compared to alcohol, but for employers, there is a key difference. At this point, it is nearly impossible to assess a marijuana user’s level of impairment.
Assessing marijuana impairment is much more complicated. Oral fluid testing is currently the best practice as it can detect recent marijuana use, exclude long-past use, and do so with a noninvasive test. Urine testing is unable to discern recent use from weeks earlier and often cannot capture use that happened within the last few hours.
What is your state law regarding pre-employment testing and disciplining employees for positive test for marijuana?
It is important to check your state laws pertaining to recreational and medicinal marijuana use and you must adhere to state laws protecting employees from discrimination. Despite legalization, employers still reserve the right to maintain a drug-free workplace. See where your state stands on marijuana legalization.
Can you discipline employees for a positive marijuana test?
Most state marijuana laws either specifically permit employers to restrict marijuana use by employees or do not mention employers or the workplace at all. When a state marijuana law does not mention employers at all, the status quo remains in place. Employers may test for and discipline for marijuana use in the same manner as other illegal drugs (subject to the requirements of state drug testing laws).
What are some best practices for managing and establishing marijuana use in the workplace?
Because marijuana use is a gray area of the law, it is important that employers communicate their marijuana policies clearly to employees. Employees may believe that if marijuana is legal in their state, they are free to use it without consequence. Employers should take care to inform employees of their workplace policy and the consequences of violating that policy.
Employers’ policies can restrict marijuana use to the extent permitted by law. All employers should continue to test for marijuana using a testing method which indicates recent use as opposed to historical use.
In states where medical marijuana users receive protection from workplace discipline, workplace policies should require employees to verify their medical marijuana authorization to a Medical Review Officer. Employers and managers should be trained to identify marijuana impairment and know what to do when an employee is suspected of impairment on the job. Policies should prohibit any marijuana use by employees in safety-sensitive positions.
Additionally, in states where medical marijuana is legal, employers should work with human resources to develop a policy for employees who request accommodation of medical marijuana use for a disability, taking care to comply with state disability discrimination laws.
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