The legalization of medicinal and recreational marijuana seems to become more widespread each year. In Michigan, both medicinal and recreational cannabis is legal. In Ohio, medicinal marijuana is legal, while recreational is not. Illinois, a neighboring state, hasn’t legalized either.
Since marijuana laws vary dramatically from one state to the next, companies are struggling to determine whether drug testing (specifically, marijuana testing) is still relevant. If you are managing a light industrial workforce, here is what you need to consider.
Cannabis Is Still Illegal Federally
In the eyes of the federal government, marijuana use in all forms is against the law. For companies that are highly regulated on the federal level, screening for drug use might be a necessity. This includes as part of the hiring process and random drug testing of all current employees.
State and Local Laws
At times, companies have to follow state or local laws regarding the use of drug screening. This could mean that an employer can only require a test after a candidate has received a copy of the drug testing policy, has been given advance notice, and/or has received a conditional offer of employment.
There are also situations where the role dictates whether specific drug screening laws take effect. Additionally, some states allow employers to opt not to hire a candidate who either fails or refuses to participate.
However, there is also a state that takes the opposing stance. In Nevada – where both recreational and medicinal marijuana is legal – employers can’t refuse to hire a candidate for merely failing a marijuana drug screening.
While the presence or lack of any state or local laws regarding drug testing doesn’t necessarily impact the relevancy of such screening techniques, they are critical considerations. There will be instances when the tests are virtually mandatory, or that specific steps need to be followed. As a result, the laws, at a minimum, are relevant to your drug screening policy and associated procedures.
The Right to a Drug-Free Workplace
Employers are legally allowed to maintain a drug-free workplace. As long as all job seekers are informed in advance that the company is a drug-free work environment, they can keep their ability to screen for various substances, including marijuana in states where it is legalized.
However, the capabilities of marijuana drug tests are a point of debate. Unlike alcohol screening methods, which can largely determine if someone is under the influence of alcohol, tests for marijuana lack that degree of accuracy. The tests can only conclude whether a person has THC (the active and potentially impairing substance in cannabis) in their system, and detectable levels of THC can remain for weeks after the last use. As a result, companies that maintain drug-free workplaces or have to align with federal standards for their industry have to treat any positive test as being over the acceptable limit.
The Issue With Medical Marijuana Use
While employers who are required to adhere to federal regulations regarding the use of marijuana don’t have to make exceptions for medical marijuana users, those that don’t need to take additional care. Firing an employee who is a medicinal marijuana user with a current prescription could result in accusations of discrimination, mainly if medicinal marijuana is used to treat a disability.
Some states require that disabled medicinal marijuana users be given reasonable accommodation, permanently banning any negative consequences for failing a drug screening for THC. However, if marijuana use prevents the person from being able to do their job effectively or creates a safety risk, that exemption might not apply.
Ultimately, the issue of drug screening has become more complex, but that doesn’t mean it isn’t relevant. Employers need to make sure that they have clear policies and procedures in place, and that all of them respect the requirements dictated by federal, state, or local law based on their industry.