Last updated: January 11, 2021
As more states move to legalize marijuana, both for medical and recreational use, more employers want to know how these changes might impact their rights to maintain a drug-free workplace. The good news is that as long as you have a proper drug free workplace policy in place, very little will change. (Employees wondering how marijuana legalization will affect them should check out David Bell’s interview by Rich DeMatteo from Corn on the Job.
Will legalization change our ability to drug test?
Companies can still engage in drug testing potential new hires and employees because employers still have the right to decide which behaviors are and are not acceptable for their workers. Drug use can be likened to other offenses that could lead to reprimand or dismissal, such as being arrested on criminal charges or posting negative comments about coworkers or the business on Facebook.
Does that apply to those who use medical marijuana?
Many states where medical marijuana use is legal also allow employers to ban marijuana use on company time and property. Even in places where recreational marijuana use is legal, case law has favored employers that have dismissed workers who tested positive for marijuana use. Employees are advised to educate themselves on the laws in their area as well as workplace policies to make sure they don’t do anything to jeopardize their jobs.
Are companies permitted to test based on suspicion of drug use?
Drug testing policies must be established and implemented, and employers must explain these policies to all workers. If you suspect an employee is using marijuana you may test based on that suspicion if policies allow for such action, but it never hurts to obtain expert advice before proceeding.
Are there any other scenarios that would warrant a drug test?
Many employers engage in random testing in which names of employees to be tested are chosen by way of a computerized system to ensure fairness. Companies may also send an employee for testing after a workplace accident, prior to returning to work, or on a routine basis if that employee failed a previous test.
What practices are not allowed?
As long as employers adhere to their own written policies, they may drug test as they wish. Companies may decide which substances they want to test for, which workers are tested and what circumstances justify testing, but they must ensure they are enforcing policies fairly. An employer may not, for instance, allow one worker to have a second chance after failing a drug test if the company has dismissed other workers for testing positive in the past.
What else should employers and employees know about drug testing?
Employers need to educate workers about the company’s drug testing policies, and in turn, employees must fully understand the policies. It is also important for employees to recognize that drug testing is not an indication that their employers do not trust them, but that it serves as a way to provide a safe, productive and enjoyable workplace for all.