With more states passing legislation with respect to marijuana use, is it time to update your drug-free workplace policy? The short answer is no. Every employer has the right to deem impairment from any source unacceptable in their workplace. This includes impairment from illegal substances, alcohol, cold and allergy medication, and, yes, marijuana.
How do you test impairment?
While there are multiple ways to test impairment level where alcohol is concerned, there currently are not trusted methods to measure the level of impairment where marijuana is concerned. There are reliable methods to test if marijuana is in one’s system, but the drug can remain in one’s system for up to a week after initial use. The argument could be made that the positive results from Tuesday’s reasonable-suspicion drug test was really only showing that the individual used marijuana within the last week. Until better tests are available, this is best addressed by documenting why the supervisor feels the employee is impaired and what risk they pose to themselves and/or other employees.
What am I to do as an employer?
Review your state’s laws on discrimination against marijuana users. Make sure your policies are consistent with state anti-discrimination statutes.
- Continue to comply with federal regulations.
- Review your drug use and drug testing policies to ensure that they clearly explain your expectations regarding impairment, marijuana use outside of company time, and drug testing.
- Make sure you are prepared to consistently follow your written procedures.
- As part of and employer’s review, have it clearly written whether all employee drug use is banned or merely impairment.
- Have a policy on medical marijuana use. Cannabis with THC will impair judgment, while medical marijuana typically only has CBD products that do not typically impair brain function. One would still test positive for marijuana use in both cases, but would only be impaired if THC were in the cannabis used.
In summary, know what state(s) you are working in and what laws apply there. Define what constitutes impairment. Work with your drug testing facilities to understand what the results mean and what levels of marijuana are in ones system if a positive test is found.
NOTICE: This guide may make reference to the Occupational Safety and Health Administration (OSHA) regulations; however the guide is not legal advice as to compliance with OSHA or other safety laws, codes, or regulations. Compliance with OSHA and other safety laws codes or regulations, and maintaining a safe work environment for your employees remains your responsibility.
