Twenty-three states have legalized marijuana in some way, and four states and the District of Columbia have even made it legal to use recreational pot. With several other states poised to legalize weed in some form, many employers have questions about how legalization affects them, so Veteran’s List reached out to an expert on the topic, Loren Beilke, from USA Mobile Drug Testing of Minneapolis.
The simple answer is, the legalization of marijuana doesn’t affect an employer’s right to establish and maintain a drug-free workplace.
According to Loren Beilke, “Employers can still drug test employees, even for marijuana, even if it’s legal in their state, and even if an employee only uses it at home.”
The courts have consistently upheld, even in states where it’s legal for recreational use, the employer’s right to test for marijuana, as well as their right to take disciplinary action—be that refusing to hire, providing employee assistance and a second chance, or zero tolerance-based dismissal—if an individual tests positive.
“That process can be a bit more complicated if the employee is on legally prescribed medical marijuana,” says Beilke, “although many states grant exemptions to employers who choose to bar the drug from their businesses or properties. To be on the safe side, employers who want to include medical marijuana on their list of banned substances should make sure they’re up to date on applicable state and local laws.”
Even in the case of prescribed medical marijuana, though, federal Department of Transportation guidelines demand a zero-tolerance policy for employers who fall under their jurisdiction. Business that fail to comply with federally mandated DOT drug testing regulations can face fines, and in severe cases, even revocation of their DOT number.
There are other caveats employers need to be aware of to protect themselves.
They should establish clear, unbiased drug-testing protocols and policies and make sure every worker is informed of both when and how testing will be conducted—pre-hire, randomly, after an accident, and in cases of reasonable suspicion, for example. It’s also critical to follow these documented policies to the letter. Making an exception for any employee opens you up to major legal liabilities.
Beilke recommends caution in the case of reasonable suspicion. “Reasonable suspicion should be well documented—with a written record of specific incidents and concerns, for example—and consulting an expert before you take action is always a good idea.” This helps to protect you in the event that an employee who was terminated for marijuana use claims he or she was discriminated against.
When use is identified through a positive test, employers must treat every case equally and according to their written company policy. Employees and job applicants need to understand that policy, know what happens in case of a positive test, and be able to trust in the absolute fairness of the program.
Testing for marijuana—and any other substances deemed detrimental to on-the-job performance—remains every employer’s right, but being clear on company policy, as well as presenting and administering it the right way, are crucial to exercising that right wisely.
“Supervisor and employee training are key to the process,” insists Beilke, adding, “Present your policy in a positive light. Let your employees know drug testing won’t be conducted due to a lack of trust on your part. On the contrary, drug testing is the best way to make sure employees with substance abuse problems get the help they need, as you ensure a happy, safe, and productive workplace for everyone.”