HR Tip: Drug testing in the age of legalized medical and recreational marijuana

As recreational and medical cannabis is increasingly legalized, employers face tough questions about testing for marijuana and continuing old-guard policies. In a recent blog, East Coast Risk Management, a member of the Institute of WorkComp Professionals, addressed how employers might handle the issue.

The recommendations include:

• Update your Drug and Alcohol Policy to make sure it's compliant with applicable law on legalized marijuana.
• Consider taking marijuana out of your pre-employment drug panel. Know the state laws - some states prohibit testing at all at this stage, others will not allow denial of employment based on a positive test. And the laws are constantly changing. Further, legalization means use is more common, which increases the number of positive tests and reduces the pool of qualified applicants.
• Train all supervisors on reasonable suspicion testing so they can recognize and document the signs of impairment of employees while they are working. When testing for suspicion of marijuana, the goal is to show impairment at work. Relying on a drug test alone won't show impairment because marijuana stays in the blood for 30+ days, long after the effects have worn off. Drug testing is therefore of limited value. The blog notes, "However, it's important to note that certain states, like New York, prohibit the employer from testing for marijuana at all. Other states, like New Jersey, require observations by a certified recognition expert before testing is done. If you do not work in a state which requires certified recognition training, it is still recommended to train managers on reasonable suspicion drug testing."
• Zero-tolerance policies may be risky. Some states have clarified the rules regarding zero-tolerance policies and marijuana, allowing the prohibition of the use of cannabis items or intoxication by employees during work hours, but making clear employers cannot restrict the lawful use of recreational cannabis during non-working hours. The lack of reliable testing for marijuana intoxication means it's likely to capture off-duty use. Employers continuing to use zero-tolerance policies will need to adapt to the rules in each state they operate. A shift away from zero tolerance to a no-impairment standard doesn't change the expectation that workers will not be under the influence of drugs or alcohol while on the job.
• Re-evaluate the need and value of all testing for marijuana use. Only companies regulated by the Department of Transportation are required to test for marijuana; these employees will never be excused for medical or recreational use if they test positive. Many employers also give special consideration to carving out policies for workers in safety-sensitive positions, which pose a high risk if workers were impaired.

While drug testing has been considered a best practice for years, marijuana is troublesome because of legalization trends, changing state laws, and the inadequacy of traditional testing techniques. Even in states that do not prohibit or restrict testing, there is the question of employee morale. Many employees feel that legal usage of cannabis off the clock should not be grounds for termination if they fail an employer drug test. Policies can deter workers from applying for jobs with your company or eliminate otherwise qualified applicants. The key is determining what best serves the unique operational, safety, productivity, and culture needs of your business.