Drug testing and legal weed

Can I drug test an employee even though recreational marijuana is legal? 

Twenty-nine states and Washington DC permit some use of marijuana.   How does this impact a businesses’ right to deny employment if an employee tests positive for marijuana? First of all, before implementing any drug testing, be sure to review our earlier post on The Dos and Don’ts of Drug Testing.

In Colorado, this issue has been heavily contested.  The Colorado Supreme Court ultimately ruled that because marijuana is still an illegal substance federally, employers have the right to deny employment if an employee tests positive for marijuana.

For many employers, drug testing for marijuana would eliminate too many candidates for the position. There are some estimates that as many 20% of adults in Colorado use marijuana.  Within hourly employees, that number is estimated to be much higher.  

The question is marijuana similar to alcohol where if an employee uses alcohol, no problem but if they come into work drunk, it is a problem.  Or does marijuana have lasting effects where a drug test does indicate future performance on the job.

When determining protocols for drug testing for marijuana there are three key factors to evaluate: impact on employee performance, safety considerations, and medical or disability protections for its use.

Does marijuana impact employee performance?

The overwhelming research indicates marijuana has a negative impact on brain function, employee performance, and safety.  Yet, there is a growing voice claiming the research is outdated and not accurate.  How can this be? Is it not common sense that you can’t drive or make sound decisions if you are under the influence?  

The question is whether marijuana is more like alcohol; if your employee is not currently under the influence does previous use impact performance?  Most employers do not test for alcohol use and for the most part, employees aren’t coming to work under the influence of alcohol.

Could we apply the same standard to marijuana in drug testing programs? Because if you test for marijuana, it shows any use for the past month whether or not an employee is presently under its influence or used a few days prior.

More research is needed to know this answer.  One recent study showed that employee absences for sick time declined in states where marijuana is legal.

If safety is not a factor, the market may dictate how much you can screen for marijuana.  For positions that are difficult to fill, it may be worth considering relaxing marijuana drug testing standards.

If there are performance problems because an employee is under the influence while on the job, that can still be addressed post hire.  If you are finding too many performance issues and have a suspicion it is related to marijuana use, a no-tolerance drug testing policy for marijuana may make perfect sense.     

Does marijuana impact employee safety?

Safety is an important reason that employers take a no-tolerance policy to positive tests for marijuana.  Department of Transportation also requires random drug testing for certain positions.  When I worked for an oil and gas services company, we had to enforce a strict pre-employment and random drug testing policy for safety reasons.

It made hiring extremely difficult in certain areas.  Yet, because our employees operated machinery and worked at dangerously tall heights we could not make any exceptions.  The restaurant industry rarely drug tests hourly employees.  Perhaps for positions working with dangerous equipment, it might be a good idea.  

The research at this point, overwhelmingly supports that marijuana impairs brain functioning and contributes to safety concerns including car accidents and death.  Of course, most of that research is based upon the premise of being currently under the influence of marijuana.  The research is less clear whether previous use impacts safety.

What about medical marijuana protections or Americans with Disabilities for employees?

What about when an employee is medically prescribed to marijuana or for that matter, any mentally impairing prescription substance like xanax, opiate pain pills, etc?  These can also be included in a drug test.  When an employee brings in their prescription, does that mean they must be allowed?

This answer falls under the Americans with Disabilities Act.  This act requires employers to make reasonable accommodation for a disabled employee if that accommodation enables the employee to complete the essential functions of the job.  

An employer may have to accommodate a positive drug test for prescription drugs if those drugs are related to a disability under the ADA and there is an accommodation that can be made to allow the employee to complete the necessary functions of the job.  

For example, a disabled employee that tests positive for pain medications may need an exception if that employee works a desk job and a doctor can assert the medications will not impact the employee’s ability to perform the primary job duties.  

If an employee is medically prescribed to marijuana however, the ADA does not include an employee’s use of illegal drugs as something an employer must accommodate.  

Since currently, even medical marijuana is illegal federally, the federal courts have held that employers do not have to accommodate an employee’s medical marijuana use.  This issue is still being contested in state court however.  So if you prohibit medical marijuana use, you may still end up in court.