In 2012, Colorado and Washington state made history by becoming the first states to legalize marijuana usage. Since then, other states have slowly adopted less stringent regulations regarding marijuana, from permitting the use of medicinal marijuana to outright legalization. Currently, 33 states and the District of Columbia have legalized either the medical or recreational use of marijuana or both.
In just six years, that represents a vast amount of change with considerable implications for employers. The ramifications add up even faster if your company happens to have locations in multiple states or employs remote workers. Since marijuana use is becoming more permissible, companies should re-evaluate whether to test and hire employees who have used marijuana. Companies that continue to screen for marijuana use could be eliminating great workers from the applicant pool.
Current legalization status in the U.S.
It's less time-consuming to list the states that still have no laws legalizing marijuana than to detail those that do. The holdouts include most of the Southern states except Florida, so that's Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virginia; Indiana, Iowa, Kansas, Nebraska, South Dakota and Wisconsin in the country's midsection; and Idaho and Wyoming out west.
Perhaps motivated by Canada's recent nationwide legalization of the substance, several states are reported to have sweeping marijuana reform legislation on the table for consideration in their upcoming 2019 sessions. The rate of change within this policy landscape isn't going to abate anytime soon, so it's important to review - and possibly rethink - company policy on marijuana testing and tolerance so that your team is well-informed about and comfortable with your company's stance.
Requirements placed on employers regarding marijuana
First off, even though many states have legalized marijuana use, it remains illegal under federal law. Regardless of the laws of the state in which your company operates, you have the right to test for marijuana, but it is up to you to choose whether to comply with the federal law or the law of your state. Moreover, if you operate in several states or have remote employees, you may operate under the laws of states with varying stances on marijuana, which complicates policymaking.
Beyond these considerations, you must provide a safe workspace, and if you are serving customers or clients, you must ensure that they're safe, too. Further, if you happen to be a federal contractor, you must adhere to the Drug-Free Workplace Act (DFWA), which requires you to make a "good faith effort" to keep the workplace free from drugs.
All this adds up to testing for marijuana for sure, right? Not necessarily. Unlike alcohol or other drugs, there's no accurate test for marijuana impairment; a test that comes back positive for THC, the active ingredient in marijuana, only indicates that a person has used marijuana in the last few weeks or so. It's possible to fail a drug test for THC in the urine up to 45 days after last using the drug; in the blood up to 75 days later; and in a hair follicle, up to 3 months down the line.
Downsides of drug testing
With that lack of precision, it's fairly easy to see these potential issues regarding testing:
• Limited candidate pool.You may have many candidates who are legally using marijuana, meaning you are limiting your candidate pool before you interview the first applicant by tacking a test for THC onto the process. There may be positions for which you feel you must test due to safety considerations, but, for example, you may feel comfortable excluding anyone working a desk job from this particular form of examination.
• Expense. Drug testing is not cheap, and once you begin testing for THC, in many cases, you'll be stuck re-testing repeatedly due to the amount of time it takes to leave a user's system.
• Deterrence of progressive candidates (not just users).Since unemployment is historically low, many companies are having trouble attracting qualified candidates. Add to that a strict drug testing policy, one that's out of sync with shifting attitudes toward marijuana use, and your company may be challenged to attract forward-thinking applicants. Polling shows that the majority of Americans favor legalization, with an even higher percentage clamoring for the legalization of marijuana for medical use.
Considerations for dropping the marijuana test
Could it be time for your company to reconsider this screen? Even if you do drop it, it's essential to have a comprehensive and consistent controlled substance use policy (including alcohol) so that all employees will understand what your company will and will not tolerate in the workplace. Plus, you may still want to screen for marijuana, as you do for other drugs, in a few cases:
• Profession. When workers operate heavy machinery, for example, they're putting themselves and other people at risk. Ensure that there are specific policies for these workers - this affects both your worker's compensation insurance and the liability insurance covering your company in case of an accident.
• Type of workplace. Do you have workers handling hazardous materials? Working up high or in precarious spaces? Hospitals, also, need to seriously consider what categories of workers they may need to screen. Again, these factors can affect both worker's compensation and liability insurance.
• Liability. Finally, make sure you are compliant with all federal, state and local regulations under which you and your company could be held liable should an employee be found to be legally impaired. Operating a motor vehicle or heavy equipment is key among these considerations, but there are many others. Carefully research all industry standards and specifications to learn what you need to know.
With the rapid rate of change in this area, it's important to revisit your policies on marijuana testing on at least a yearly basis, to ensure that you're remaining compliant with laws in your state and wherever your business and your employees operate. That way, you can rest assured your applicant pool won't go up in smoke.
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