Editor’s note: This article is more about current trends. Please contact us for specific advice regarding questions about managing marijuana use and drug testing in your small business.
by Anne Beshears
In the recent election (November 2018), Michigan joined the ranks of states legalizing recreational marijuana use and Missouri and Utah both passed laws allowing marijuana use for medical reasons. Thirty-two states in the US have now legalized marijuana either for medical use (22 states) or both recreational and medical use (10 states).
Regardless of your position on the legalization of marijuana, this change brings up some interesting questions for HR and drug testing, including whether or not to test and what that policy and procedure might look like.
In addition to changing drug laws, low unemployment rates mean that many companies have had to ease up on their hiring requirements in order to find workers. Marijuana use by adults in the US has nearly doubled between 1984 and 2017, meaning that more people than ever will test positive for marijuana use. Given the choice between having sufficient staff and eliminating potential hires due to a positive drug test, many companies are choosing to forego drug testing altogether or to ignore positive results for marijuana. Even companies which have stereotypically been the most strict about drug testing, such as nursing homes, hotels, and restaurants have stopped doing drug testing in order to fill positions.
Have the laws regarding drug testing changed in the wake of new legislation? No, not yet. Marijuana is still illegal on a federal level, and what legalization of marijuana at the state level means for drug testing remains unclear. While some companies have chosen not to conduct drug tests because of the difficulty in navigating current legislation, especially in states where marijuana use is legal, plenty of other companies have chosen to continue.
The reasons some companies continue to do drug testing varies, Allen Smith with SHRM explains. For some companies with Department of Transportation obligations, drug testing is mandatory. Others test for safety-sensitive positions such as warehouse work or driving heavy machinery. Some companies do drug testing simply because that’s what they’ve always done.
Whether or not your company chooses to perform drug testing, you still need to be aware of a few things. First, you should include a statement that employees are not allowed to be at the workplace under the influence of drugs or alcohol. Second, remember that substance abuse addiction is covered by ADA, so be careful about terminating an employee who’s using without going through the appropriate remediation, i.e. recommending treatment, etc. Finally, we recommend that you have a policy addressing the use of prescription drugs, which may impair behavior.
What this does mean is that now is a good time to talk to an HR consultant about reviewing your company’s drug testing policy. Is it still worth it to continue drug testing, even if it means missing out on some great hires? Or do you have safety-related positions where drug testing is an important part of maintaining a safe workplace?
If you are in a state that has legalized marijuana and you are considering terminating an employee for marijuana use, we highly recommend talking to an HR consultant before proceeding.