Last year, California, Massachusetts, Maine, and Nevada joined Washington, Colorado, Oregon, Alaska and the District of Columbia in legalizing recreational marijuana. This year, Vermont’s legislature passed a legalization statute but that was vetoed by the Governor. Eighteen other states have some form of legalized medical marijuana program.
Under Federal law, marijuana remains a Class 1 substance, and the US DEA maintains its authority to prosecute for marijuana possession or sale. Because of this status and regardless of whatever state laws allow, most mid to large size employers continue to prohibit its use, and are continuing to test for it.
Still, change is in the wind. With more and more states moving towards legalization – and with 60% of the U.S. population now residing in states which allow recreational marijuana use – many employers are wondering whether to revamp their workplace drug testing policies to reflect this new reality.
The bottom line is – changes are not required unless you want to in most cases, no matter where you’re located.
For the most part, states’ marijuana legalization laws support employers in testing for and prohibiting marijuana use by employees.
Here’s a state-by-state rundown:
As elsewhere, though, drug-free workplace policies are still permitted. The Maine recreational marijuana law that passed in 2016 specifically protects the right of employers to “enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace.”
What’s the difference between after-hours drinking and after-hours pot smoking? There are two major differences, actually. First, marijuana is still illegal under federal law. So while it may be lawful conduct outside of work, it is still a federal crime.
The other difference is that unlike alcohol, marijuana doesn’t metabolize out of the system within several hours. It can stick around in the bloodstream for weeks, triggering a positive result long after it has any notable effect on performance. For this reason, it may be prudent to base suspected drug use on whether employees appear to be under the influence while on the job, in order to supplement the documented record of any randomly administered positive drug test.
The climate may be changing in states like California and Colorado. Legal experts and advocates say loosened drug screening for marijuana is already happening in some industries in those states.
In California and Colorado, in particular, there’s a recognition in some sectors that there are a lot of marijuana users who are highly valued employees. As recreational use increases among the working population of adults, employers there say this diminishes the talent pool over time.
However, companies in safety-sensitive transportation industries such as trucking, as well as fields that deal with heavy machinery, like construction firms and industrial plants, are especially unlikely to loosen policies. The same is true for businesses that contract with the federal government.
Employees in workplaces with drug-free policies should be made to understand that they will still face risks if they continue to use marijuana in their off hours, regardless of whether recreational use is legal in their state.