It’s no secret that the passing in law of the legality for the use of medical marijuana as well as for recreational purposes in several states has shaken the floor for many. The statistics on the rate of current illicit drug abusers are creeping back up on the charts and unsurprisingly predominantly fueled by the increase of marijuana users. As we learn of additional states that are looking at legislation to further legalize the most commonly abused illicit drug in the world, what type of structures can employers implement in their place of business in an effort to protect their companies and ensure a safe and productive workplace? Can employers “legally” test for the consumption of marijuana? If so, which testing methods can be used? To answer the doubts among many in the authorization of testing for marijuana, the response is yes; employers still have the right to test for marijuana and are advised to continue to test for this drug in their workplace.
Putting a policy into place is the first place to start. You want to make sure you have a CLEAR statement on what you are trying to achieve with your drug testing program, especially with the new element of recreational and medicinal marijuana laws. The policy clearly has to state the fact that you do test for marijuana and that there will be consequences for those who test positive for marijuana. Remember, before we weren’t necessary separating marijuana or putting a spotlight on marijuana in our policy, but now it’s good advice to do that. This doesn’t dilute the force of the policy as it relates to other drugs, but it does put a spot light on this particular drug as there is so much confusion out there because of political moments and the success that pro marijuana people are having around the country.
We have heard of cases like, “Wal-Mart vs. Casias” and “Coats vs. Dish Network” which put a precedence that employers can look to on the importance of having a policy in place, especially to cover the medical marijuana legislation/bills currently in place in certain states, or for those that are currently considering the passing of this law. These cases held up employer’s rights to prohibit marijuana usage by their employees. Employers should know that they have the right to test for marijuana, but certainly without any doubt when it comes to safety sensitive positions. As far as DOT is concerned, they are not buying into any of the legal marijuana usage or people using marijuana “legally” and then breaking federal regulations as it applies to the Department of Transportation.
There are various testing methods that can be used - such as urine, hair and oral fluid. Urine testing remains the most popular and the gold standard of drug testing. Lab based oral fluid testing may also be a good match in states or in workplaces with companies that are particularly sensitive to the marijuana issue. In fact, the federal government is looking into putting together lab lased oral fluid regulations; DOT has already signaled they are going to adopt this at one point in the future when SAMHSA finalizes those regulations. Lab-based oral fluid testing provides a longer window of detection than current oral fluid Point of Collection Testing (POCT) devices on the market, especially with respect to marijuana. This is due to cutoffs for oral fluid POCT devices being higher than lab-based oral fluid tests. Over all, lab based oral fluid and urine results are comparable and the two drug testing methods complement one another very well. If the goal is to catch chronic users, hair testing would be the ideal testing method.
A lot hinders on what the policy says. With all that is involved, employers should seek professional support when implementing or reviewing their drug-free policies. This will put their mind at ease that their work place program meets their objectives and is compliant with state and federal laws.
USA Mobile Drug Testing recommends a statement similar to the following for inclusion in drug free workplace policies where employers do not want to hire or retain employers who use marijuana. “The company prohibits employees from reporting for work with an illegal drug, including marijuana (medical, recreational or otherwise), in his or her system. The company conducts drug testing for marijuana and enforces this policy consistently with respect to all drugs, including marijuana (medical, recreational or otherwise), as the law allows the company to do”. A well written drug free workplace policy enforced consistently will reduce employer exposure to liability. Compliance specialists at USA Mobile Drug Testing are available to assist employers with their needs for drug free workplace policy programs.