Whether you were a Trump supporter, Clinton supporter, or
none of the above, the election is behind us. The results of the November
ballots resulted not only in the election of Donald Trump as our president, but
also the legalization of recreational marijuana use in four states in what the media
is calling a big win for marijuana reform.
California, the United States’ most populous state, along
with Massachusetts, Nevada, and Maine, approved the use of recreational
marijuana on Tuesday, November 8th. Overnight, the number of states permitting
recreational use grew from four (Alaska, Colorado, Oregon, and Washington) to eight,
doubling the amount of states in which use of marijuana is legal. So not only
has the most populous state legalized marijuana, but the movement for reform
has made its way out to the east coast.
Recreational use was not the only marijuana-related question
on the ballot either. Medical marijuana usage was approved by three new states
(Florida, North Dakota, and Arkansas), pushing the number up to a whopping 28
states. Nine different states had marijuana on the ballot, so we will talk
about the impact these bills will have on your drug screening policy.
Whenever a new bill is passed relating to marijuana, we get
questions about how that will impact your corporate drug screening policy. We’ve
written about it in the past, and the answer remains the same as before. Until
marijuana is removed from the list of Schedule I drugs under the federal
Controlled Substances Act, employers should still be able to test for the
substance as they see fit. That is because the states that have passed these
laws permit taking adverse action if the employee is under the influence of
marijuana at work.
Now some may ask, “Don’t these new laws prohibit adverse
action (firing of an employee) for the off-duty use of marijuana?” The answer
is yes, but determining whether it was used during work hours or after hours
can be tricky. The problem lies in the testing methods used for marijuana. Unlike
alcohol, there is no known threshold for impairment. Testing for marijuana,
depending on the method, can detect use from as far back as 30 days. For hair
tests, the window of detection is larger. Therefore, a positive result does not
necessarily mean the applicant/employee is impaired. However, there is no way
to be sure.
In conclusion, due to the limits of drug screening for
marijuana and the drug’s inclusion in the list of Schedule I drugs under the
federal Controlled Substances Act, employers can still take adverse action
against employees and applicants for a positive drug test. So for now,
employers can still maintain a zero-tolerance policy for the drug should they
so choose. Whether the spread of this marijuana-related reform or the
development of new drug screening tools will change this remains to be seen. We
recommend that companies at the very least review their policies and, should
they continue to enforce a zero-tolerance policy, communicate to their
employees that marijuana use could still result in the termination of
employment.
