As marijuana legalization momentum continues in the US, employers are faced with complex challenges related to drug testing for marijuana in the workplace.
While marijuana remains illegal under federal law, a significant number of states have legalized and/or decriminalized it. In states where marijuana is legal, employees may argue that their off-duty use should not affect their employment status, particularly if it does not impair their job performance. Yet, in most states, as well as under federal law, testing remains legal. This discrepancy creates significant challenges for employers.
Risks and challenges of marijuana drug testing
The most significant risk for employers is legal liability. States that have legalized marijuana often include employee protections for off-duty use; therefore, employers who take adverse action against employees based solely on a positive marijuana test could face liability for unlawful decision-making. Being diligent about knowing and understanding these protections is critical.
Moreover, the Americans with Disabilities Act and similar state laws protect employees with disabilities. Employers must be cautious when drug testing employees who use marijuana medicinally to manage a disability or medical condition. Providing reasonable accommodations, such as allowing off-duty use, may be required, and mishandling this (e.g., firing) could cause legal problems.
One of the challenges with marijuana is determining impairment. Unlike alcohol, there is no widely accepted test for current marijuana impairment. THC, the psychoactive compound in marijuana, can remain in the body for days or even weeks after use, leading to positive test results even when the employee is not impaired at work.
This raises questions about the fairness and accuracy of drug testing policies and whether they effectively address workplace safety concerns. Several companies are working on testing methods similar to an alcohol breathalyzer, but these tests are not yet approved for widespread use.
Another challenge is that strict drug testing policies, particularly those that include legalized marijuana, can negatively impact employee morale and retention. Employees may view testing as intrusive or unfair, especially if they’re responsible off-duty users. This can lead to decreased job satisfaction, low productivity, and high turnover rates. In competitive labor markets, companies may struggle to attract and retain top talent.
Marijuana drug testing: State vs. federal
Many states that have legalized marijuana also provide specific drug testing restrictions, limiting when and how tests may be used. For example, in states such as New York and Washington, pre-employment testing is not permitted, with some exceptions for safety-sensitive positions. Employers must be aware of the specific laws in their state and any local ordinances that may impose restrictions on marijuana testing.
Certain industries and contracts are subject to federal regulations that mandate drug testing, including marijuana, regardless of state laws. For example, most federal contracts require regular drug testing for employees in safety-sensitive positions. In these cases, federal law preempts state law, and employers must comply with federal testing requirements.
Employers in regulated industries must be vigilant in maintaining compliance with federal regulations while also considering state-specific restrictions and employee rights.
Best practices
Given the complexities of marijuana drug testing, employers should take a proactive approach. Some best practices include:
- Employers should regularly review and update drug testing policies to reflect changes in federal, state, or local laws. Clearly communicate these policies to employees and ensure they understand the consequences of a positive test.
- Shift the focus from testing for marijuana use to identifying and addressing impairment. Implement training programs for supervisors to recognize signs of impairment and handle situations appropriately.
- Consider whether testing is necessary for all employees or if it should be limited to certain roles. Tailor drug testing policies to specific job roles, particularly for safety-sensitive positions.
- Work with experts to navigate the complex legal landscape of marijuana testing. This is especially important when dealing with accommodation requests and state-specific protections.
- Encourage open communication with employees about drug testing policies, as well your rights and theirs. This can help build trust and reduce the risk of legal disputes.
As marijuana legalization evolves, employers must carefully navigate the risks, challenges, and restrictions associated with drug testing. By staying informed, updating policies, and focusing on impairment rather than use, employers can create a safe and compliant workplace that respects the rights of all parties.
Editor's note: This article appeared in the November/December 2024 print edition of Dental Economics magazine. Dentists in North America are eligible for a complimentary print subscription. Sign up here.
