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Colorado, Washington, Alaska, Oregon, and Washington, D.C. have all legalized the recreational use of marijuana in recent years, and the trend may be continuing in the years to come. If you are an employer in one of those states, or in a state where marijuana could be legalized in the near future, one issue that may arise is modifying your drug and alcohol policy to allow off-duty marijuana use.
The problem with legal marijuana and the workplace is that you’re left with no way to create and enforce a policy that allows off-duty use but also prohibits on-duty use. THC (the active ingredient in marijuana) can be detected for several days—or even weeks—if the employee is a frequent user. When testing, you wouldn’t know if the employee used marijuana two hours ago while at work or on the weekend/last night after work.
We would not recommend a lenient policy on marijuana in a company that has safety-sensitive roles or employees that drive frequently for work. You will need to comply with specific drug testing requirements if you have driving positions that are subject to Department of Transportation rules.
For companies without such positions, a more lenient approach may be considered. For example, if you currently have a practice of testing all applicants or conducting random tests of your current employees, you may want to switch to testing only upon reasonable suspicion of impairment on duty. Most drug and alcohol policies take the stance of “zero tolerance” and have a provision that provides for testing in the event of suspicion of use. However, in the event there is ever a problem with an employee using or being impaired on the job, testing would not determine when the use occurred, so you cannot guarantee that it would not catch someone who used off-duty.
We do not recommend taking out drug testing language completely or indicating that you will not test for marijuana, as these would make it harder for you to enforce your policy that people not use or be impaired by drugs or alcohol while on duty.
In general, having language that prohibits marijuana use and impairment on the job along with reasonable suspicion drug testing language may well screen out some candidates and employees who are recreational users. However, in our opinion, this combined language strikes the best balance between protecting your company and not testing when you do not need to.
For more information on how GTM advises clients on HR issues such as this one, contact us at (518) 373-4111.
