As Some States Legalize Marijuana Use, Employers Revisit Drug Policies

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By: Marie Donlon

As some states begin to legalize marijuana use (medicinal and/or recreational), employers are being forced to re-examine now-antiquated workplace drug policies.

Considered a controlled substance by the FDA, Workers’ Comp underwriters, along with the DEA and OSHA, agreed upon testing and regulation of the substance, which would oftentimes result in the loss of a job or some other form of punishment if an employee tested positive. Now, as laws are relaxing, employers are considering what to do about marijuana usage and testing in the workplace.

Writing for SHRM (Society for Human Resource Management), Joanne Deschenaux quoted attorneys Timothy P. Van Dyck and Nathaniel Nichols at Edward Wildman Palmer, “This uncertain regulatory scheme places employers in the delicate position of attempting to comply with divergent laws while maintaining order and safety in the workplace.”

Consequently, employers are encouraged to have policies in place to protect both their interests and the safety of their employees. Consider, for instance, employers’ policies concerning employee alcohol usage. While most employers have policies concerning alcohol use during working hours or consumed during the course of business, companies are being forced to navigate decades-old drug-free workplace policies on testing for drugs that may be perfectly legal (depending on an employee’s state of residence, of course) when used recreationally and outside of the office.

“About 9.74 percent of Americans have gone to work under the influence of marijuana, according to a survey conducted by Survey Monkey for Mashable.” They go on to say, “Prescription drug takers were much more common, with 28.28 percent of people saying they've gone to work after taking prescribed medication. However, about 7.28 percent say they took these drugs for recreational purposes, rather than medicinal purposes.”

Based on the numbers and the issues presented by legalization, experts recommend the following steps when creating new policies:

  • Specifically define and distinguish between phrases such as medicinal and recreational

  • Define what the employer means by “under the influence”

  • Be consistent in both policy and practice

  • Make the new policy clear and available to new hires

  • Offer resources or referrals (i.e., treatment for abuse)

  • Look into tests available that would distinguish marijuana from other drugs

  • Protect employees using marijuana for medical reasons

  • Require employees to reveal their usage so that they are accommodated under ADA

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