According to Quest Diagnostics, failed drug tests reached an all-time high in 2017 and it is only expected to continue to rise. With the legalization of medical and recreational marijuana sweeping the nation, it raises some important HR questions and concerns.
- Should employers still perform drug tests in states where marijuana is legal?
- Can an employee be fired or fail to be hired if they do not pass a drug test?
- Does recreational or medical marijuana users have any legal protections against negative action because of a positive test result?
- What about worker’s compensation claims when an employee fails a drug test?
Performing Drug Tests Where Marijuana Is Legal
It is still within the employer’s right to perform all drug screenings according to company policy. In fact, there is an exemption to the law in every state that has legalized marijuana that states “the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees” is not changed.
Some employers are wondering if drug screening is worth it, with unemployment hovering around 4% and filling positions becoming harder. Positive drug tests are starting to be viewed as an artificial barrier to employment, equating recreational marijuana use while not working equivalent to “having a beer Sunday night.” Employers are faced with the decision to hire the best workers, regardless of recreational habits, or lose out to foreign competitors because failing to fill positions is negatively affecting their productivity.
Negative Action because of a Positive Drug Test
Just as it is still within the employer’s rights to conduct drug screenings, it is also still legal to take legal action following a positive drug test because marijuana is still illegal on a national level and the laws have not provided any protections for its users, with some exceptions to cases where medically prescribed.
In 12 states—Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania and Rhode Island— with legal medical marijuana, there are some exceptions and protections for those using marijuana for medical purposes. That doesn’t mean an employer can’t screen for it, pull a job offer or terminate for a positive marijuana test result. In deciding how to respond to a positive marijuana test, talking with a job candidate or employee about when they used marijuana, how they used it and whether they used it at work may be recommended. Always consult with your HR professional and legal counsel before taking any action to assure you are complying with local/state/federal laws.
Workers Compensation and Positive Drug Tests
There is a decreasing trend in marijuana being included in drug screening with more states legalizing medical and recreational use. Some companies still test only because it is required by law, DOT or safety-sensitive jobs, for example. Even with a generally decreasing trend in drug screening for THC, after-accident drug screening has increased in the last few years. There are some criticisms of the THC screening because of how long it stays in the system and that a test can come back positive days, sometimes weeks, after the effects have worn off, but a positive drug test following an accident or worker’s compensation claim can result in the employee being found negligent and/or the claim being denied.
*The preceding has been provided as general educational information only. It is not legal advice, express or implied. Consultation with legal counsel in all matters of background screening law and compliance is recommended.