In recent years, marijuana laws in the United States have undergone a dramatic transformation. Once considered taboo, the use and possession of medicinal and recreational marijuana has become more and more widely accepted, leading to shifting laws at both state and federal levels. It’s crucial for employers and employees to understand the implications of these ever-evolving regulations and how they impact the workplace.
Shifts in Marijuana Legalization
The turning point for marijuana legalization in the United States can be traced back to California’s Proposition 215 in 1996, which permitted the use of medical marijuana. Since then, more than 35 states and the District of Columbia have legalized medical marijuana, and 23 states and the District of Columbia, led by Colorado and Washington in 2012, have gone a step further by legalizing recreational marijuana. New laws are taking effect across the country all the time relating to marijuana use and workplace testing.
The exception is federal law. While individual states are legalizing various forms of marijuana use and regulating testing, the federal government’s laws have remained unchanged. Federally, marijuana remains classified as a Schedule I controlled substance, and its use in any form is illegal at the federal level. Accordingly, some jobs with a federal component – federal jobs, federal contracts, or jobs that are federally regulated – may mandate testing for marijuana use.
Questions to Ask Your Legal Team
This legal complexity raises numerous complicated questions for employers, including the following:
- How to reconcile conflicting federal and state laws? The stark contrast between federal and state marijuana laws creates ambiguity for employers, who must often choose which regulations to follow depending on variables such as location, industry, and applicant pool.
- What to do about remote workers in different states? The rise of remote work means employers with workers residing in states with differing marijuana laws face significant challenges around implementing consistent, company-wide drug testing policies.
- And what about medical marijuana? Laws allowing the use of medical marijuana pose a challenge to employers who need to accommodate medical users while upholding workplace safety.
- Are zero-tolerance policies a thing of the past? Enforcing strict zero-tolerance policies becomes more challenging in states where recreational marijuana is legal.
- What role do privacy rights play? Some states have laws protecting employees from discrimination based on lawful off-duty activities, including marijuana use, which can infringe on employers’ ability to regulate conduct outside of work.
- How can impairment from marijuana even be determined? In states with legal recreational marijuana, determining impairment due to marijuana use in workplace accidents can be complex, as the substance can remain detectable in the body for an extended period.
- How to stay on top of changing laws? Frequent changes to marijuana laws require employers to stay updated on evolving laws and adapt their policies accordingly. Compliance is an ongoing challenge.
- How to navigate the impact of marijuana testing on employee relations? Addressing marijuana-related issues can impact employee-employer relationships, especially when employees perceive that their rights are being infringed upon.
- Is it possible to attract employees if the company policy requires they pass a drug test that includes marijuana? Many employers are facing pushback on drug testing policies from potential employees. Individuals who use recreational marijuana while off the clock resist taking drug tests that may show trace amounts of marijuana remaining in their system and having those results impact their eligibility.
Employers across the country are struggling to answer these and many other questions surrounding the issue of drug testing and marijuana use.
Revisiting Company Policies and Procedures Surrounding Marijuana Laws
In light of all these questions, many employers are reassessing their drug policies. This reevaluation may include any or all of the following:
- Rethinking Zero-Tolerance Policies: Many employers are reconsidering zero-tolerance policies, especially in states where recreational marijuana is legal. They might shift their focus to addressing impairment on the job rather than off-duty use.
- Impairment Testing: Some employers are exploring new methods to determine impairment instead of relying solely on marijuana metabolite testing. This could include evaluating an employee’s cognitive and motor skills through performance-based assessments.
- Individualized Assessment: Employers are considering a more individualized approach, where they evaluate each case on its merits, considering factors like job responsibilities and the employee’s role in safety-sensitive positions.
- Education and Awareness: Employers are investing in education and awareness programs for their workforce. They want to ensure employees understand both the company’s policies and the specific marijuana laws applicable to their state.
- Medical Marijuana Accommodation: In states where medical marijuana is legal, some employers are more accommodating toward employees who use it to treat medical conditions and are adjusting their policies to address medicinal use.
- Regular Policy Review: Employers are recognizing the importance of regularly reviewing and updating their drug policies to align with the evolving legal landscape and protect against potential legal challenges. In some states, it’s illegal to discriminate against employees for lawful off-duty activities, including the use of marijuana. Drug policies must strike a balance between maintaining a safe workplace and respecting employees’ rights.
- Increased Focus on Safety-Sensitive Positions: Many companies are enhancing their efforts to ensure strict employee drug policies and conduct in-depth background checks for safety-sensitive roles, where impairment could lead to significant risks.
- Modified Testing Frequency: Instead of routine or automatic testing, some companies are implementing a more targeted approach, conducting tests only when there’s reasonable suspicion of impairment.
- Remote Work Considerations: With the rise of remote work, employers are considering how to navigate the complexities of maintaining a consistent testing protocol while also complying with different marijuana laws across various states.
- Consequences. Employers must revisit the parameters for consequences resulting from positive drug tests. The outcome of a positive marijuana test can vary widely depending on state laws and company policies. Reevaluating these consequences is essential, as they must be in line with applicable laws and company values.
- Seeking Legal Guidance: Employers are increasingly consulting legal experts well-versed in employment and marijuana laws to craft policies that are compliant with both federal and state laws and able to protect their interests.
Protecting Employers: Liability and Responsibility
Legality aside, marijuana use still poses critical issues for employers such as liability in cases of workplace accidents or injuries that involve marijuana use. In states with established recreational marijuana laws, determining whether an accident was caused by impairment can be challenging. Employers need to develop clear procedures for assessing impairment to mitigate potential legal risks.
Understanding these nuances is paramount for businesses, as failure to navigate the complex terrain of marijuana laws can result in costly legal disputes. Employers must ensure their policies and procedures are aligned with the legal landscape as it stands today. Protecting both the workplace and the rights of employees remains a critical goal.
As regulations continue to evolve, employers must remain vigilant, informed, and adaptable. Navigating the dynamic legal landscape and safeguarding the rights of both employers and employees is essential to maintain a safe, efficient, and compliant workplace. Accurate’s vast network of testing sites plus our laser-focus on compliance give you the support essential to getting the drug testing services your business needs to succeed.
