Twenty-eight states now allow the medical use of cannabis (marijuana), and eight have legalized its recreational use. Some state statutes include legal protections for employees who use it for medical purposes. But the federal government still classifies cannabis as a Schedule 1 controlled substance, with no medical use—and illegal under federal law. How should an employer handle this conflicting information?
Employers will want to review their existing employment policies for any references to drug use or intoxication and determine the following:
- Who: Who will you test for use of cannabis? Job applicants? All employees at random? Only employees in safety-sensitive positions? Understand how privacy, nondiscrimination and other laws affect your right to test.
- What: What do your employee policies say about the use of cannabis and other intoxicants? Do you have different standards for medical and non-medical use?
- When: If you test for cannabis post-incident, you should realize that THC and other components of marijuana can stay in the bloodstream for weeks after use. This can make it difficult to accurately judge a person’s level of intoxication.
- Where: Where will you look for information? Since little research has been done on marijuana’s effects at the federal level, states have the responsibility of determining what levels of THC and other components of marijuana people can safely have in their bloodstream before their judgment and reflexes are impaired. Standards vary from state to state, if they exist at all. We recommend outsourcing drug testing to a vendor that has the resources and experience to monitor changes in state laws.
- How: How will you keep abreast of changes in state and federal law? Having an employment attorney regularly review your employee policies and procedures can help you strike the balance between protecting your rights to a safe and drug-free workplace and employees’ privacy.