Last updated: October 19, 2020
There is no need to list the 33 states that have legalized the use of medical marijuana, if your business is located in one of them, you are likely already aware.
Perhaps, you have already been presented with an employee testing positively for the drug to find out they have a medical marijuana prescription allowing its use. Or, has an employee presented you with this medical information prior to a drug test in hopes of alleviating a problem before it presents itself?
If your company has a zero tolerance policy in place, it did not bode well for the employee, did it?
While we are on the subject, we had just as well mention the recreational factor. With 10 states now on that bandwagon, more are sure to follow.
These varying degrees of marijuana legalization shed a spot light on the fact that some Americans are in favor of these changes, both medically and recreationally. And, as it seems these changed views regarding the legalization of marijuana are progressing with each election, employers are realizing they may need to rethink the marijuana issue in regards to their drug policies. This doesn’t mean that employers should omit testing for marijuana, but rather that they should be fully educated on the current laws, workplace safety issues, and the limitations of today’s drug testing technology.
Marijuana is still illegal at the federal level
Classified as a Schedule I drug with a “high potential for abuse,” marijuana remains illegal at all degrees of the federal level of government.
Department of Transportation (DOT) and SAMHSA (Substance Abuse and Mental Health Services Administration) regulated employers and employees will continue to adhere to a zero tolerance policy regarding marijuana positivity confirmation on a DOT drug test. All procedures following detection will remain in place and will be followed.
Legalization at state level presents no change
Employers who enforce a drug free workplace policy are not required to make any changes to their drug testing panel if marijuana has been legalized in their state for medical and/or recreational use. Marijuana is still classed as a highly addictive drug which causes impairment to the user by our federal government.
Employers have the right to ensure employees are not under the influence.
Testing for impairment
Unfortunately, therein lies the rub. There is no way to test someone for impairment “on the spot.” In the big picture, this poses a significant problem to solve. More and more employees may be turning to medical marijuana products, but the impairment factor at work may not come into play even though they test positive for THC levels in their system.
Same deal, different description regarding recreational use.
Studies are in progress documenting that the time a person is actually impaired by use of the drug is around two hours. This verses the fact that because THC is almost immediately stored in the fat cells, it is detectable in a person’s system for up to 30 days. This information could ultimately become the determining factor in whether or not employers want to continue to have marijuana (THC) included in their current drug screen panels.
Several companies are claiming breakthroughs with the use of breathalyzers in detecting marijuana impairment. According to documented findings, marijuana levels are detected in the breath for roughly the same amount of time that a person is under the influence. Two hours.
This revelation could really change things up for employers, law enforcement and responsible marijuana users world wide.
In the meantime
What do you do when you enforce a drug free workplace, but your employee is prescribed its use as a medication and uses it as such in the confines of his home then pops positive on a test? Or, your top selling employee failed a random drug test because he was legally, recreationally, and responsibly partaking nowhere near the job last weekend?
The wind of change is upon us regarding marijuana and its use. Lawmakers, CEOs, and those that are working to solve the problems at hand with detection equipment and data documentation have their work cut out for them.
Medical marijuana obviously serves a purpose to the majority of responsible adults that are voting for its legalization. Those responsible adults are also beginning to say it serves a purpose recreationally, as well. We might need to think about that aspect.
Some things to be considered regarding impairment vs the detection window:
- In states where recreational use of marijuana is legal, more employees are apt to try it
- Many stellar employees could be put at undue risk of failing a drug test and losing their jobs
- Many worthy applicants could be turned away unjustly
- Marijuana positivity (both in the general workforce and the federally mandated safety sensitive workforce) has steadily increased over the past 5 years
All valid points to consider. Ultimately, at this point anyway, if you are not mandated by the government otherwise, the call is still yours. Weigh the pros and cons for yourself and pull together your own discussion panel of advisers.
Your management team and supervisors know your employees the best. They will be invaluable in the discussions that determine where things go from here.
There is a solution to this puzzle and working together is the quickest way to finding it.