The Difficulty in Weeding Out a Legal Substance

With medical marijuana use legal in 23 states and recreational use legal in Colorado and Washington, employers who want to maintain a drug-free workplace are finding themselves in murky territory. In fact, some employers question whether or not maintaining an environment free of drug users is even a viable concept, and conducting drug screenings on employees in states that allow medical and recreational marijuana use is nothing short of a legal headache.

Employee drug use is problematic for employers because drug abusers cost companies money and productivity, and their habits elicit safety concerns, particularly in the workplace where employers have legal obligations to all of their employees. For this reason, marijuana is still considered an illegal substance on the federal level, despite its legal status in some states. Therefore, federal institutions can still prohibit their employees from gaining employment if they test positive for marijuana during a drug screening.

Those who find themselves benefitted by the legal use of medical marijuana, and those who have the ability to partake recreationally in Colorado and Washington, do not feel that their drug use outside of the workplace should affect their employment. If the purpose of a drug screening is to eliminate drug use in the workplace, then the concerns of the aforementioned individuals are completely valid.

The problem employers face when conducting drug testing on employees is that drug tests cannot determine whether or not a person is high on THC (the chemical in marijuana responsible for the psychological effects) at the time of the test, only that the chemical is present in the person’s system. THC can stay in someone’s system for several weeks depending on the individual and usage frequency. The current method of drug testing complicates retention decisions for employers because they want to eliminate the negative effects of drugs on employee performance and workplace environment.

Colorado law dictates that employers cannot terminate an employee if he/she uses marijuana off-site during non-working hours, as long as that is in accordance with state law. Employers in Colorado can only prohibit employees from using marijuana at work. Colorado’s solution seems simple enough, but how employers respond to employees who test positive for THC in states that have legalized marijuana use isn’t always uniform, nor is how employees monitor their usage in relation to work time.

Since drug screening occurs as a result of safety and productivity concerns, employers in states that have legalized marijuana (and one can only assume that number will grow) can help themselves maintain a drug-free work environment by educating themselves on state and federal laws regarding marijuana use and employment, effectively communicating drug policies to new and current employees, and acquiring legal assistance if and when an issue arises.