Can You Have A Drug-Free Workplace Where Marijuana is Legal? 5 Jul 2017

Last year, California, Massachusetts, Maine, and Nevada joined Washington, Colorado, Oregon, Alaska and the District of Columbia in legalizing recreational marijuana. This year, Vermont’s legislature passed a legalization statute but that was vetoed by the Governor. Eighteen other states have some form of legalized medical marijuana program.

Under Federal law, marijuana remains a Class 1 substance, and the US DEA maintains its authority to prosecute for marijuana possession or sale. Because of this status and regardless of whatever state laws allow, most mid to large size employers continue to prohibit its use, and are continuing to test for it.

Still, change is in the wind. With more and more states moving towards legalization – and with 60% of the U.S. population now residing in states which allow recreational marijuana use – many employers are wondering whether to revamp their workplace drug testing policies to reflect this new reality.

The bottom line is – changes are not required unless you want to in most cases, no matter where you’re located.

Drug-Free Workplaces Can Largely Remain That Way

For the most part, states’ marijuana legalization laws support employers in testing for and prohibiting marijuana use by employees.

Here’s a state-by-state rundown:

• Massachusetts: The 2015 law maintains the authority of employers to “enact and enforce workplace policies restricting the consumption of marijuana by employees.”

• Alaska: When the law passed in 2014, companies that had drug testing policies in place were allowed to keep using them. Those who had none could not immediately start testing until they carefully followed a series of protocols to ensure employees were being treated fairly. Steps include creating clearly defined rules, such as which employees the policy applies to, and identifying the consequences of testing positive or refusing to be tested.

• Nevada: After the law’s passage in 2016, the rules for drug testing employees were unchanged. Public and private employers are not prohibited “from maintaining, enacting and enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted” under the act.

• Washington: This was one of the first legalization states, starting in 2012. Employers were still allowed to conduct drug testing according to their written policies. Among employers who do not test all new employees is the Washington State Liquor and Cannabis Board, which only tests prospective enforcement officers.

• Colorado: One of the first states to legalize recreational use in 2012, Colorado takes a hands-off approach when it comes to regulating employee marijuana use policies. Unlike most states, Colorado does not have a statutory scheme governing workplace drug testing. Employers may adopt drug screening policies on their own, but they have more exposure to wrongful termination claims without a statutorily sanctioned empowerment.

• Oregon: Legalization passed here in 2014. Oregon law provides that it may not be construed to amend or affect any state or federal law pertaining to employment matters (where workplace drug testing has always been permitted) or to exempt a person from a federal law or obstruct the enforcement of a federal law.

• California: The 2016 ballot language said the proposition will not “amend, repeal, affect, restrict or preempt … the rights and obligations of public and private employers to maintain a drug- and alcohol-free workplace or require an employer to permit or accommodate [marijuana] use…”

• District of Columbia: Washington D.C.’s 2014 law does not address drug testing in private employment (other than for certain entities that contract with the District). This means that drug testing is neither prohibited nor restricted.

• Maine: Maine has stricter rules than most states for employers who wish to test. Maine employers may require an employee to take a drug test only if there’s probable cause to think they’re under the influence, for follow-ups to previous positive test results, or under a pre-existing randomized testing program.

As elsewhere, though, drug-free workplace policies are still permitted. The Maine recreational marijuana law that passed in 2016 specifically protects the right of employers to “enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.”

What Are the Special Circumstances Around Marijuana Testing?

What’s the difference between after-hours drinking and after-hours pot smoking? There are two major differences, actually. First, marijuana is still illegal under federal law. So while it may be lawful conduct outside of work, it is still a federal crime.

The other difference is that unlike alcohol, marijuana doesn’t metabolize out of the system within several hours. It can stick around in the bloodstream for weeks, triggering a positive result long after it has any notable effect on performance. For this reason, it may be prudent to base suspected drug use on whether employees appear to be under the influence while on the job, in order to supplement the documented record of any randomly administered positive drug test.

Signs of Possible Change to Come

The climate may be changing in states like California and Colorado. Legal experts and advocates say loosened drug screening for marijuana is already happening in some industries in those states.

In California and Colorado, in particular, there’s a recognition in some sectors that there are a lot of marijuana users who are highly valued employees. As recreational use increases among the working population of adults, employers there say this diminishes the talent pool over time.

However, companies in safety-sensitive transportation industries such as trucking, as well as fields that deal with heavy machinery, like construction firms and industrial plants, are especially unlikely to loosen policies. The same is true for businesses that contract with the federal government.

The Bottom Line

Employees in workplaces with drug-free policies should be made to understand that they will still face risks if they continue to use marijuana in their off hours, regardless of whether recreational use is legal in their state.