Marijuana Legalization and Drug Testing

Medical marijuana has been accepted in several states, and this has led to many questions concerning how these changes affect employment drug screens. When you consider that Washington DC and four other states have legalized the use of marijuana recreationally, and 23 states have legalized its medicinal use, this is a concern that is beginning to plague many employers.

The question when it comes to drug screening is how to reconcile drug free workplaces with the changing legal landscape. So far, there have already been a few cases seen in various court systems after employees were fired due to failing a drug test – even if they had a medical marijuana card, or it was considered legal for recreational use in the state. These cases have been settled on the side of the employers for now, but some employees are appealing the decisions to higher courts.

What It Means for Employers

Many employers are concerned with whether they have the right to fire employees or refuse to hire those who test positive for marijuana in the states where it is no longer illegal. The truth is, so far, it seems to be up to the employer as to whether they will allow employees to fail drug screens solely due to marijuana testing.

Many employers use the drug screens to ensure the safety of their business and customers, and for most, this hasn’t changed. The only problem is how to rectify off-the-clock drug use with their own drug free policies. One Colorado company that sells vaporizers for marijuana has resorted to cognitive skills testing for on the job spot checks, such as if an employee comes back from lunch red-eyed and hazy. The program tests baseline cognitive functions to help determine if the employee is using the drug on the job. While this might help some employers, it still doesn’t help those who want to stay in compliance with federal regulations requiring drug-free work policies.

Some employers in these states are leaning towards omitting the marijuana portion of the drug screen, but for others, the decision is at their discretion. If you have a drug-free or zero tolerance drug policy, as an employer you still have the right to refuse to hire, or even fire current employees if a positive test result comes back.

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