Last updated: January 30, 2023
USA Mobile Drug Testing compliance specialists caution DOT regulated employers that DOT covered employees cannot use marijuana even in Colorado and Washington – two states that cheered passage of referendums legalizing recreational marijuana. The Department of Transportation (DOT) is clear in its regulations that the use of marijuana is strictly prohibited for employees in DOT covered positions.
Colorado and Washington employers not regulated by DOT must tighten up their Drug Free Workplace policies in order to maintain status as drug free and continue to prohibit employees from using marijuana. Colorado amendment 64 stated that legalization of marijuana is not intended to require an employer to permit the use of marijuana in the workplace or lead employers to have policies restricting employees’ marijuana use. The questions remains will an employer have the ability to restrict a worker’s use while not on the job. Perhaps employment drug testing in these states will exclude marijuana.
The Drug Enforcement Administration has quickly tried to spoil the Rocky Mountain high, issuing a statement the morning after Election Day saying the DEA’s “enforcement of the Controlled Substances Act remains unchanged. In enacting the Controlled Substances Act, Congress determined that marijuana is a Schedule I controlled substance.” Drug Enforcement Agency administrators and directors of the Office of National Drug Control Policy position is that the legalization of marijuana still violates federal law and the passage of these legalization measures could trigger a “Constitutional showdown.”
Voters in Massachusetts — and possibly Montana, pending final vote counts — also approved medical marijuana referendums, allowing doctors to prescribe the drug to patients suffering serious medical problems, which were carefully spelled out.
While Washington and Colorado voters became the first to legalize marijuana for recreational use, a similar proposal was rejected in Oregon Tuesday. And Arkansas voters narrowly said no to a medical marijuana referendum similar to the one that passed in Massachusetts.
High among the concerns of business groups is how employers could enforce workplace drug policies. The gray areas of employment law that already exist with medical marijuana in Colorado will become grayer if pot is legalized, they say. Both sides of the issue agree that the ability of an employer to fire a worker for using marijuana during work hours is beyond dispute. But what about employees violating company drug policies by smoking legal marijuana after work? The lawyers will be busy!