Ongoing decriminalize of marijuana has posed challenges for employers. The 2016 election saw voters approve new marijuana laws in seven states and now, there are 28 states, plus the District of Columbia, in which the substance is legal.
Marijuana is still a Schedule I substance under the federal Controlled Substance Act. This federal law maintains the possession, manufacture, distribution and sale of the substance is criminal. The conflict between the federal and state laws (for those which have legalized the drug) is what creates confusion.
Employers strive to maintain a productive and safe workplace while protecting the rights of their employees. Consequently, as marijuana is legalized and its use grows, so do the number of employees who test positive for the substance in drug screenings.
What is an employer to do?
Companies have had to update their employee requirements to align with changes in their state’s legislation. For example, if a company has eliminated mandatory drug screenings, does it still have the right to issue a test for a single individual based on reasonable suspicions? If so, the employer must adhere to a strict guideline of what constitutes such behavior.
Generally, three factors are considered regarding employee drug testing laws: who can be tested under what circumstances; how would the testing be conducted; and, what were the procedures to be observed by the testing entity.
In some states, such as Colorado, the law allows employers a Zero Tolerance Policy. However, the history of legislation (i.e., ADA in 1990 and Compassionate Use Act of 1996) protects some individuals against criminal charges. So, how does an employer navigate the confusion? Is the employer covered under the Drug-Free Workplace Act?)
If so certified under “The Act,” employers need to develop and publish a written policy for all employees to comply with as a condition of employment. Further, it would be advisable for the employer to initiate awareness programs to educate employees about drug abuse and to offer drug counseling and rehabilitation programs. Also, require that all employees notify their employer within five days of any conviction for a drug offense in the workplace, and, last, continue to make a good faith effort to maintain a drug-free workplace.
Are you an employer who needs assistance regarding testing for drugs in your state or industry? Data Screening can provide due diligence screenings via a variety of criteria. Their services cover legal aspects as well as customized information regarding drug testing and marijuana decriminalization.
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Data Screening is a Certified Women’s Business Enterprise that has offered business-to-business employment and tenant screenings to human resource professionals and business owners, including staffing companies, for two decades. Among other organizations, they are members of the New Jersey Staffing Alliance, the Society for Human Resource Management and the National Association of Professional Background Screeners. How may we help you today?