At the writing of this article, 33 states in the United States have legalized the use of marijuana either for medicinal or for recreational purposes (or both). Other jurisdictions at the municipal level are also legalizing marijuana.
The federal government, however, still classifies marijuana as a Schedule I drug, which means it is illegal at the federal level. And federal law always supersedes state law. In other words, use or possession of marijuana on federal property is always illegal, even in states where recreational or medicinal use of cannabis is legal.
Drug Testing for Marijuana – Why Some Employers Are Balking
Because of complexities (or vagueness) with state laws and/or the fact that drug testing alone cannot determine if someone is impaired due to marijuana, we're seeing more and more employers opting to remove marijuana from their employment drug test panels. This is a mistake (more on this in a moment).
Regarding the point about impairment . . . if someone is a habitual marijuana user and they take a drug test, they will test positive for marijuana—even if they're not currently high.
First, as Healthline reports, weed "is usually detectable in bodily fluids for 1 to 30 days after last use"—and upwards of three months for heavy users. Second, drug tests only detect the presence of marijuana (specifically tetrahydrocannabinol or THC—the chemical that produces the high). Today's drug tests cannot determine the source/timing of marijuana ingestion. And, unlike alcohol, the test cannot determine if a person is presently under the influence of marijuana.
As you can imagine, this presents challenges for employers. Because whether a person uses marijuana at work or they use it regularly during their personal time, the fact remains that the person will test positive for marijuana in both cases.
Good Egg's Position: Keep Marijuana on Your Drug Test Panels
As we mentioned earlier, many employers are removing marijuana from their drug test panels altogether due to the above issues. At Good Egg, we believe this is a mistake. To begin to understand why, consider the following stats:
- 1 in 5 people from this survey have admitted to using marijuana during work hours.
- According to Occupational Health & Safety, "Marijuana use has been linked to an increase in job accidents and injuries."
- The National Safety Council cites a study that reports, "Employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries and 75% greater absenteeism compared to those who tested negative."
- 57% of cannabis consumers are millennials (those who are 23-38 years old), a demographic that will make up 75% of the workforce by 2025.
- Research suggests the potential for increased use of marijuana among adults over 21 in states where it's legal.
- States with legalized weed have seen an increase in car accidents (this is relevant to employers, because you likely have more people driving on behalf of your company than you realize).
As these statistics suggest, marijuana use in the workplace remains a relevant topic particularly when you consider that it can adversely affect safety, productivity, and morale. And given how many millennials use marijuana, employers would be remiss if they didn't address marijuana use in their drug and alcohol policies. Just as you wouldn't want someone drunk on the job, you wouldn't want someone high, either. Even though the legal and testing landscapes make it challenging to deal with, a "head in the sand" approach isn't smart.
Instead, employers should adapt their workplace drug testing programs to reflect and incorporate changes in state laws regarding recreational and/or medical marijuana.
Strategies for Adapting Your Drug Testing Program to Include Marijuana
Below are strategies for updating your drug testing program for marijuana:
- Identify your resources – find a drug-testing partner with the expertise to assist you.
- Research state laws in the states where your company conducts business.
- Determine your company's policy for marijuana; make sure you understand who—if anyone—must be tested due to federal regulations (e.g., workers covered by DOT rules).
- Train managers to recognize signs of impairment.
- Discuss/plan for how your company will handle various scenarios.
- Update your company's written drug and alcohol policy
- Consider consulting an attorney, especially if the employment laws in your state are unclear regarding employment protection and marijuana (we'll be addressing this in a future article).
- Notify employees about changes, new protocols, etc.
- Revisit your drug and alcohol policy yearly (at the very least) and adjust, as needed.