Marijuana Legalization and its Effect on Your Drug Screening Policy

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 8^th. 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.

This information is meant to serve as educational and should not be construed as legal advice. Please consult your legal team when making changes to your drug screening policy.