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 Studies indicate that a significant percentage of the workforce population imbibes in marijuana use on a recreational basis.  Cue everyone’s look of surprise.  While perhaps not as widespread as the good ole high school days it appears that about one in seven adults still partakes in marijuana in some form on a frequent enough basis.  More importantly, for the purposes of this Tip, the participating adult population increases by about 20% in states that have legalized recreational use.  Apparently there are people on the sidelines who are willing to smoke but haven’t wanted to violate the law. 

As Massachusetts joins the ranks legalizing marijuana use for recreational purposes, and Illinois to follow in 2020, they join the list of ten other states that blazed the trail before them on this issue.  The result is that a significant population of working people in this country will have little to no legal barrier to obtaining and consuming marijuana, at least under state law.  Yet, the concern for workplace safety has not changed , and many employers have drug testing policies and drug free workplace policies in place to further a safe working environment.  Legalization laws create an obvious predicament.

What are employers to do? 

 We first need to understand a few things.

First, no state that has legalized marijuana, whether for recreational or medical use, has banned drug testing as a result of legalizing efforts.  Nevada just passed a law prohibiting pre-employment drug testing for cannabis (only), which will go into effect in 2020, and some states have drug testing restrictions or bans drug, but not because of marijuana use rules.  Many states have enacted laws that give a pass to employees who are taking cannabis for medical reasons, so long as they are not impaired from it at work, but testing laws have been generally left undisturbed for recreational use.  This is all to say that, if you were testing before your state legalized recreational marijuana use, nothing has substantively changed regarding your ability to continue to do so, with the exception of Nevada employers beginning in 2020.

Second, federal law still considers marijuana/THC to be a controlled substance.  Drivers covered by the Federal Motor Carrier Act will continue to be subject to the same testing rules.  Certain federal contractors and grantees will additionally have to comply with the Drug Free Workplace Act.  It’s also very common for employers in general to have a policy of maintaining a drug free workplace, at a minimum, for safety reasons. 

Finally, many states have laws prohibiting employers from punishing employees for their lawful use of products.  In recreational use states with lawful product laws, employers are prohibited from disciplining or negatively impacting the terms or conditions of an employee’s employment because of what they did outside the workplace.  Certainly this restriction would not apply to what an employee does at work or on company property, but firing someone for smoking pot at home (or drinking beer) is off-limits. 

Understanding this, the question for employers who are currently testing employees and applicants remains: do you continue to test?  The answer is likely to depend on a number of factors.  What is the nature of the work performed?  Would intoxication or some level of THC in an employee’s system impact performance or create a safety hazard?  What would testing do to my ability to recruit and retain workers?  How have I treated alcohol, which has been legal since Prohibition ended, but has intoxicating effects?  Every business is going to answer these questions differently.  In general, though, the world has not changed.  State testing laws have generally remained unchanged with recreational use passage leaving employers with the option of testing.  Certainly many employers will just stop testing entirely given the trend toward legalization, but until the state drug testing laws change, whether employers will want to continue to test, scrap testing altogether, or perhaps remove THC from one of the chemicals tested for, will largely be up to them to decide.   

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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