Last updated: May 29, 2023
It seems with each passing election, marijuana legalization is passed somewhere in some form or another. Both medical and recreational use create valid safety concerns for employers, however.
Could safety carve-outs be the solution?
We all know that marijuana use affects both motor and cognitive skills. As marijuana, pot, weed, or whatever you want to call it, becomes more and more accepted, employers worry about how it will affect workplace safety. Some fear that marijuana will eventually be banned from drug testing entirely.
A Bigger wrench in the works
Currently, employers are protected by our Federal Government. Marijuana is classified as a Schedule 1 drug at the federal level. Meaning that it is an illegal drug. There are no known medicinal qualities and abuse is likely.
If marijuana is legalized at the state level, employers are able to side with our Federal Government. Marijuana testing can remain in place unless the employer chooses to remove it.
However, if the STATES Act passes, the Schedule 1 classification will be dropped. Individual states will be left to regulate marijuana laws. This doesn’t bode well. Some state governments are already discussing removing marijuana from employee drug tests entirely.
With precedents being set, others are likely to follow suit.
That said, employers have every right to wonder what will happen if the STATES Act passes.Employees who use marijuana pose a huge safety risk to the company.
Another concern is that employees will push for even more leeway in regard to marijuana and the workplace.
We said it before, but it bears repeating. Marijuana impairment in the workplace is a major safety concern. Employers have every right to keep drugs out of the workplace. Have you contacted your state and local governments to voice your concerns in regard to keeping your marijuana drug testing policies in place?
The day may soon come when an employer brings suit against their government over the right to drug test. The outcome is iffy because this issue has never been argued in court. However, documentation of reasonable cause coupled with a positive test result could be a winning defense. A decision made in favor of the employer would set a precedent of our own. Don’t you agree?
It all comes down to this
It would be a great weapon to battle the idea of banning marijuana testing entirely. Until then, employers are unable to detect for impairment at a specific moment. This leaves them at the mercy of advocates who argue it is unfair to test for marijuana use because it remains in the system long after impairment from the drug passes.
In addition, scientists are hard at work developing a marijuana breathalyzer. A few are in the testing phase and could hit the market soon.
In the meantime
It’s wise for employers to stay on top of changes regarding marijuana legalization within their state. Hiring a professional to look over your policies is a good idea.
- Have a pre-employment testing policy in place that manages possible THC accommodations for applicants. For example, state that your company restricts hiring based on a positive THC result.
- Clearly define job descriptions for all employees. Include details for safety-sensitive roles where THC impairment applies.
- Train your supervisors to ensure they understand how to handle a reasonable cause of suspicion.
- Educate your employees on any changes in company policy.
Carve-out the kinks
Employers need to insist on carve-outs within their state legislature. Carve-outs would allow for the continuation of drug testing whenever safety issues are of concern. This could be a solution.
Those who fill safety-sensitive positions will breathe a sigh of relief. However, we must consider the fact that factory workers need to be drug free, too. The product that you offer should not risk being anything less than of the utmost quality.
It can save you from exposure to future lawsuits.
More importantly, the public’s safety is in the balance.