We picked up valuable insights from the article “Marijuana and the Workplace: It’s Complicated,” by Tamara Lytle, on shrm.org. With rapidly changing laws governing the use of marijuana, employers are struggling to modify and enforce their drug policies. According to the article, some states and cities are even working to ban the use of employee marijuana tests. Today, HR professionals must continuously ensure that their company’s drug policy doesn’t violate state or local legislation. At the same time, they also need to enforce safety and productivity in the workplace. Employees should never be under the influence while at work.
Even when companies are legally allowed (or even obligated) to drug test for marijuana, measuring impairment can be complex. According to the article, alcohol impairment is usually measured at .04 percent blood alcohol content, but set measurements for marijuana have not yet been created. Unlike alcohol, THC takes a long time to leave the body. This means that someone may test positive for marijuana use, even if he/she is not currently impaired. Paul Armentano, deputy director of NORML, a pro-legalization organization, suggests that companies use performance testing to measure possible impairment. He explains that specific performance tests can measure impairment in categories that are impacted by marijuana use.
Many companies are choosing not to test for marijuana use because there is a shortage of qualified candidates that don’t use it. These companies don’t condone drug use on the job, but they do not focus on what employees may do in their free time. Note that this is the way most organizations address the use of alcohol. As one anonymous talent acquisition director for a national fast-food chain stated, “’If we had to turn away every applicant who tested positive for marijuana, we’d lose 80 percent of our potential hires.’”
Although many companies are dropping marijuana testing, others are addressing the issue differently. Pre-employment testing is still required for many positions that pose a safety risk. Some employers administer random drug tests, while others only test those who are suspicious or have been involved in a work-related accident. The article also states that some companies are adopting a second chance policy for those who fail marijuana tests, in part due to the lack of qualified candidates.
In summary, marijuana testing for employees is becoming a legal grey area that varies regionally. Marijuana use is still illegal according to federal law, but many states are legalizing recreational or medical marijuana use or the use of CBD. Employers have the right (and often the responsibility) to forbid impairment on the job, but they may not have the right to pry into what potential or current employees do in their free time. Potential legal conflicts are increased by legitimate medical marijuana use. Since THC stays in a user’s body for an extended amount of time, tests can come back positive, even if the employee is not currently impaired. If an employee is fired for medical marijuana use, they may be able to sue for disability discrimination. Finally, many companies are doing away with testing because there are not enough job candidates who don’t use marijuana. This may or may not be a wise choice for your organization. Consult local, state, and federal laws before making changes to your workplace drug policy.
Remember, impairment on the job is a legitimate concern for employers and co-workers. Proper communication on the existence, purpose and use of your hotline can empower employees to “say something” when they “see something” unsafe.