Even though 56% of Michigan voters approved the recreational use of marijuana on November 6, 2018, and it became legal on December 6, 2018, it seems that it is only recently that more and more employers are rethinking their drug screening policies. This is in large part due to the problem of finding employees, and especially in finding employees who will not test positive for the substance.
Marijuana is still illegal on the federal level, although bills have been introduced from Democrats and Republicans to removed marijuana from the Controlled Substances Act and leave it up to each state to decide their laws regarding marijuana. Although there have been conflicting messages as to the stance of the current administration on the topic of marijuana legalization, a statement by the White House Press Secretary, Jen Psaki, stated, “The president supports leaving decisions regarding legalization for recreational use up to the states, rescheduling cannabis as a Schedule II drug so researchers can study its positive and negative impacts and, at the federal level, he supports decriminalizing marijuana use and automatically expunging any prior criminal records…He also supports legalizing medicinal marijuana, so that’s his point of view on the issue.”
Until new legislation is passed, the substance remains illegal at the federal level. It is also illegal for use by anyone in safety sensitive positions.
Along with the changing landscape of states who have legalized the use of marijuana for medical purposes, recreation, or both, employers should carefully consider any changes to their current policies. In some cases, changes may be legally warranted.
With so many other drugs out there, including the high rate of opioid abuse, it is not advised for employers to stop drug testing all together. If, after careful consideration and review with their legal advisors, employers decide to stop testing for marijuana, that panel can be removed from drug testing while still covering other often abused substances.
That being said, some states are enacting laws regarding marijuana testing for employment purposes.
Illinois allows employers to test for drug and alcohol use and to make employment decisions based on the results. That is, as long as their policies are “reasonable and nondiscriminatory.” What is reasonable was not defined, which is a great reason for seeking legal counsel.
Arkansas, Alaska, Arizona, Delaware, and Minnesota prohibit employers from discriminating against those who qualify as medical marijuana users in those states. Arkansas legislation allows for good-faith based employment decisions, but requires the employer to have observed behavior indicative of use or to have received information from a “reliable person” about the employee being impaired in addition to a positive drug test.
However, employers in Michigan, California, Colorado, Montana, Ohio, and Oregon can terminate employees who test positive for marijuana including use on their own time and as well as for medical conditions.
Marijuana use is not covered by the Americans with Disabilities Act, but states may allow employees to sue based on state law. Some lawsuits have been dismissed because use is still illegal under federal law, but that could soon change.
With all of the changes going on, it is a good idea to review your current policies with your legal counsel and make any necessary adjustments.
Additional ASE Resources
ASE Handbook Services – ASE provides both classes and consulting on employee handbook development. The next handbook class will be held this fall. For handbook development consulting and services, contact Michael Burns.
ASE Drug Screening - ASE can service all your drug screening needs and assist you with creating or updating a drug screening policy. For more information contact Susan Chance.
Sources: freep.com, 4grewallaw.com, marijuanamoment.net, forbes.com, shrm.org