Where There's Smoke ...
With more than 60 million Americans living in states that have legalized recreational marijuana, many employers are reassessing their policies toward the drug. While some are turning a blind eye to what their workers do after hours, those in fields that operate heavy machinery still retain a complete ban on marijuana use. Employment attorneys say it’s a murky area where policies can vary from employer to employer and state to state.
Recreational marijuana use is now legal in Alaska, California, Maine, Massachusetts, Nevada, Oregon, Washington and the District of Columbia. The Medical Marijuana Project reports there are an estimated 2.3 million legal medical marijuana users in the country, and a 2016 Gallup survey found that 13 percent of Americans said they currently use marijuana, up from 7 percent in 2013.
Christina Semmer, an employment law attorney at the firm of Wilson Turner Kosmo in San Diego, Calif., says one of the biggest factors clouding the issue is that marijuana remains illegal under federal law. While some states are mulling legislation to change drug testing policies, employers still have the right to test for and ban marijuana use even if the substance is legal in the state. Semmer says employers can even terminate workers for legal medical marijuana use should they desire.
“As long as it remains illegal under federal law, employers have more cover to have clear no-drug use policies. Most don’t want to rock the boat and if they can legally [keep no-drug use policies] they’re going to do that,” Semmer says.
Yet some companies in these states are taking the stance that adults can do what they want off-duty as long as they are not impaired during working hours. Kathryn Russo, employment attorney at the firm of Jackson Lewis in Melville, N.Y., says in some of these states, employers are eliminating marijuana from pre-screen testing because they’re finding “so many people test positive.”
Russo says policies also are coming down to not only company culture but also the role and responsibilities of the employee. She says while employers in these states have stopped testing many office workers, they continue to strictly test field employees that operate heavy machinery, or where government contracts mandate all employees to be tested. In some cases, she says employers may forgo pre-screen testing yet inform employees in the company handbook that testing positive for marijuana in a post-accident drug test could be grounds for termination.
“So they might let them know that if they use marijuana off-duty and have an accidents and test positive, there may be disciplinary action, up to and including termination,” Russo says.
A December 2016 survey by the Mountain States Employers Council found that 7 percent of Colorado’s employers removed marijuana from pre-employment tests while 3 percent removed it from all drug tests. Semmer says whatever they do, employers should clearly communicate their drug policies to workers in documentation and the company handbook. Job candidates and employees also need to assess the company’s policies and weigh the risks around marijuana use. Getting high occasionally on the weekends, even in a state where recreational use is legal, still could impact negatively a person’s job or employment prospects.
Another problem is that urinalysis for marijuana testing does not indicate a person’s level of impairment. Unlike with alcohol, where impairment can be measured accurately through blood alcohol content, there is no scientifically validated means to test for marijuana impairment. The National Drug Court Institute says TCH, the active ingredient in marijuana, can be detected in the urine for up to thirty days. This means these tests can’t differentiate whether a person smoked marijuana a month ago or two hours ago.
Semmer says some employers are moving to testing models that assess not only a person’s drug test results but also behavior and physical appearance. Employers may weight the results of urinalysis with the size of their pupils, redness in their eyes, speech patterns and other visual clues. “It’s my belief that as marijuana use becomes more commonplace and more accepted in our society, employers will decide to not necessarily rely solely on a failed drug test,” Semmer says.
A recent Gallup survey indicates that 60 percent of Americans, and 83 percent of those under age 34, say marijuana should be legal. Until there is legalization at the federal level, and until testing can measure impairment, Russo says it will remain an evolving area of employment. “In industries were people operate machinery, they’re not tolerating marijuana at all. But in other industries they’re not even testing because they thing everyone is going to be positive,” Russo says.
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