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Marijuana in the Workplace - To Test or Not To Test?
13 August 2024
Regardless of your personal opinions on marijuana use, business owners need to know your obligations
Marijuana may be legal in your state, for medical or even recreational purposes. This fact changes the historical assumption that you should test employees for marijuana usage and fire anyone who tests positive. So what's a business owner to do?
Drug Testing for Other Drugs
Even if your policies allow for recreational marijuana usage, you should still engage in drug testing to see what else an employee might be using.
Unless you fall under federal Department of Transportation drug testing guidelines, you are not required to fire someone who tests positive for any drug, so there's no legal impact to a positive test. And testing will help you determine whether an employee is using something more serious, like meth, cocaine, or fentanyl.
While we leave it up to the individual company to decide on a marijuana policy, we do encourage companies to fire employees who test positive for harder drugs. And what you don't know CAN hurt you - you risk negligence lawsuits if employees have an accident while operating equipment, like company vehicles or power tools, and you didn't take steps to identify red flags like an existing addiction. Negligence lawsuits can result in awards of MILLIONS of dollars, especially if there was a death or permanent disability. Since you don't want to risk harm to your employees, clients, reputation, or bank account, it'd be wise to require (at a minimum) a pre-employment drug test.
Drug Testing for Marijuana
Even in states where marijuana usage is legal, the use of marijuana AT WORK can and should be regulated. Being high poses both customer service and safety risks, and should be strictly prohibited in all departments within your company (even your office staff). Think of it this way: if you wouldn't want an employee to be drunk at work, you should have the same standards for them being high.
Unfortunately, unlike for alcohol, there's no quick test to see whether someone's currently under the influence of marijuana. The tests now on the market look for THC metabolites, which can stay in someone’s system for weeks, depending on their metabolism, making it highly unreliable for assessing when someone last “used.”
This doesn't mean you should neglect marijuana testing, only that you should use multiple sources of information before deciding how to proceed. If someone displays behaviors of “being high” before the test, AND the test is positive, it makes a stronger case that he or she was under the influence of marijuana at work. Be aware that there's pending legislation in some states that might limit the use of marijuana tests currently on the market, so reach out to us if you have any questions on what's permissible in your area.
Implications for the Future
Congress is considering “rescheduling” marijuana at a federal level, which would place it on par with alcohol and change the requirements for looking at usage. Also, new marijuana tests are under development that claim to be more precise, able to tell if someone just used marijuana and went on to drive or work while under the influence.
We recommend you continue drug testing while we await changes in laws and testing capabilities... but use discretion in how you act on the drug test results, particularly for marijuana.
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