Recreational marijuana use is now legal in Alaska, Colorado, Oregon, Washington and the District of Columbia. Yet experts say the shift toward more laid-back laws is likely to extend far beyond those four states and the capital district, with several more states now considering similar legislation.
Some HR professionals may be left wondering whether to continue pre-employment screenings and random drug testing now that attitudes towards marijuana seem to be becoming increasingly relaxed. Despite a few impassioned pleas calling for an end to workplace drug testing, the practice is still a necessary one in order to ensure the safety and productivity of employees and the organization.
“If a business receives federal funding it must continue drug testing.”
The current state of the law
Recreational marijuana use may be legal in a growing number of states, and medical marijuana use is already legal in a staggering 23 states, but the drug is still illegal at the federal level. Marijuana is classified as a Schedule 1 drug along with heroin, LSD and ecstasy. What does this mean for companies located in states where marijuana use is legal? In one regard, at least, the law is clear: If a business receives federal funding, it must continue drug testing and enforcement of federal regulations laid out in the Drug-Free Workplace Act passed in 1988. In the case of companies without such funding considerations, the regulatory waters become much more murky. Over the past few years, individual states have been forced to decide whether workers can be legally fired over marijuana use and what exceptions, if any, should be made before an employee is terminated.
In 2011, the Washington State Supreme Court heard the case of Jane Roe, a medical marijuana user, who believed she had been wrongfully terminated from her job after testing positive during a routine drug test. The court ruled 8-1 in favor of the company, saying that Washington’s Medical Use of Marijuana Act does not “create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.”
A similar ruling was also made more recently in Colorado, in a case that involved a customer service worker who was fired in 2010 after he tested positive for marijuana, which he also had been using medically following a car accident. His appeal went to the Colorado Supreme Court, which ruled 6-0 in favor of the employer who fired him. “Employers’ zero-tolerance drug policies trump Colorado’s medical marijuana laws,” the Denver Post headlines reported of the ruling.
It’s possible that employees will take these failed cases to heart and possibly reconsider legal recourse over termination involving marijuana use. Yet it’s also likely that as marijuana usage becomes legal in more states, more cases like these will be taken to the highest levels of the state legislature. Over time, as court cases become more commonplace to judge whether an organization is within its rights to terminate an employee over marijuana use, it’s entirely possible that the Supreme Court may even weigh in on the matter.
In the meantime, HR professionals who elect to terminate an employee over marijuana use should continue to follow organizational protocols and keep diligent, meticulous records or partner with a respected third-party vendor to ensure the testing and record-keeping are unimpeachable.
Marijuana use on the rise
There’s no disputing that marijuana use is increasing dramatically in the face of the changing legal landscape. According to testing company Quest Diagnostics, usage among the workforce increased more than 6 percent in 2013. The rise was even more pronounced in states that have legalized the drug. Marijuana use increased 23 percent in Washington and roughly 20 percent in Colorado.
“Hiring employees who routinely use marijuana can be a costly mistake for employers.”
Those who have argued in favor of marijuana legalization may claim that the drug doesn’t impede function or judgment, but that is simply not the case. Companies are understandably suspect of what impact recreational marijuana use could have on employee productivity, safety and customer interactions. Short-term side effects of the drug include impaired motor skills and short-term memory, in addition to altered judgment. Long-term or heavy use can lead to addiction, which may make it difficult for some users to separate a weekend habit from workweek responsibilities. In fact, more Americans seek treatment for marijuana than any other illegal drug.
Hiring employees who routinely use marijuana can be a costly mistake for employers, leading to high turnover and low productivity. One study shows that people who used an illicit drug in the past month are more likely than those who haven’t to report working for three or more employers in the past year. And the U.S. Department of Labor estimates that businesses lost around $82 billion over the course of a year from the lost productivity of drug and alcohol users.
Of course, marijuana isn’t the only illegal substance pre-employment screenings and random tests are designed to find. HR professionals should consider all forms of substance abuse when it comes to the use of drug testing in the workforce. In fact, according to Quest, positive tests for heroin increased 82 percent from 2010 to 2013. Heroin use has been linked to workplace accidents, increased theft and decreased productivity.
Make a clear and consistent policy
Experts agree that workplace guidelines regarding drug use and testing must be clearly laid out, stressing the health and safety benefits of a drug-free workplace to the employee, explaining procedures for who will be tested and how, as well as explaining the consequences of not adhering to policy. Organizations that have locations in multiple states should adopt a single, consistent policy that will be applied across the company in order to avoid any charges of singling out certain users.
Particular care should be taken in those states in which marijuana use (either medically or recreationally) has been made legal. In-house counsel or an attorney familiar with state and federal guidelines on drug testing and termination should advise the organization in shaping and enforcing these types of policies and guidelines.
With marijuana legalization and usage on the rise it’s more important than ever to implement and execute drug testing in order to ensure a safe and productive work environment for everyone.
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