Legal Cannabis Push Employers To Rethink Drug Testing

Employers have the right to fire or deny employment to anyone currently engaging in the illegal use of drugs. Even in states that have legalized marijuana for recreational use, or for medicinal use employers are under no requirement to accommodate candidates’ use of this drug.

The arguments in favor of enforcing a drug-free workplace typically weigh heavily on workplace safety, productivity and job performance. Employees under the influence of drugs can pose a danger to themselves and others. In fact, there are few protections anywhere in the country for employees who fail a drug test, even in states where cannabis is legal.

Employers across the country have near-total discretion whether to sanction off-duty pot use. Only three states have some protections for medical marijuana users: Arizona, Delaware and Minnesota. Even so, state court decisions have consistently sided with employers . Twenty-eight states and the District of Columbia have legalized medical marijuana. But the drug remains illegal under federal law, and employers have the right to test for it, even in states where the substance is legal. Not only does federal law conflict with some states’ laws, but state laws also vary, sometimes significantly, challenging multistate employers.

“Employers [in states with legalized marijuana] can either follow federal law, which says it’s illegal, or follow a state law, which says something different,” said Kathryn Russo, an attorney in the Long Island

Ten of the 28 states with compassionate care statutes that allow marijuana to be used for medicinal reasons require employers to consider accommodating the user. In these states, it is against the law to disqualify someone from a job just because that person tested positive for marijuana.

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Some companies are keeping the drug tests but are eliminating marijuana from the testing. Experts agree that whether or not employers decide to test for marijuana pre-employment, having a clear, well-thought-out drug-testing policy addressing marijuana is a good idea.

Although some states now allow recreational marijuana use, none of those states have any regulatory language that tells employers that they need to accommodate recreational users. That said, having an explicit policy is essential for defining job expectations from the start and eliminating any surprises for candidates.

As more and more states consider marijuana for medicinal and recreational use, we are seeing many employers discontinue drug testing for positions that do not involve the use of heavy machinery, do not place others at risk, and are not covered by federal mandated contracts. By eliminating the drug test as a condition of employment many employers have seen very significant increases in the number of candidates applying to their open positions.

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