Last updated: October 25, 2021
Now that recreational marijuana is legal in Colorado and Washington, employers in those states must determine how to handle employees who fail a drug test after using the drug on their own time.
There are many sound reasons why employers have zero tolerance policies and engage in drug testing (including marijuana) of applicants and/or employees, including customer requirements, government contracting requirements (e.g., the federal Drug Free Workplace Act), federal or state laws (including DOT requirements for transportation workers), workplace safety, productivity, health and absenteeism, and liability.
Marijuana still remains illegal for all purposes under the Federal Controlled Substances Act. Employers simply do not have to condone illegal drug use, possession or influence at their workplace.
In light of state marijuana legalization efforts, to best protect themselves, employers should review their policies to make sure that illegal drug use under both state and federal law is prohibited, and that their policies prohibit any detectable amount of illegal drugs as opposed to an “under the influence” standard. Employers should also ensure that all levels of their human resources personnel know how to handle medical marijuana issues as they arise.
Sample Policy Language:
The company prohibits employees from reporting for work with an illegal drug, including marijuana (medical or otherwise), in his or her system. The company enforces this policy consistently with respect to all drugs, including medical marijuana, as the law allows the company to do.
USA Mobile Drug Testing encourages companies with employees in a medical marijuana State or Colorado/Washington (with legalized recreational marijuana); to have legal counsel review all Non-DOT drug testing policies.
