Drug Testing

With the coronavirus crisis still impacting the workforce, employers are having a hard time finding qualified applicants, and having drug free workplace policies makes it even more difficult. Add to that, attitudes towards cannabis have recently changed, with many states having legalized the drug for medicinal purposes (if not for recreational use) and the question becomes: should employers still test for it?

In trying to provide a safe work environment, employers have maintained drug-testing programs, which typically use a five-panel screen that tests for amphetamines, cocaine, opiates and phencyclidine (PCP), and marijuana.  In some states where marijuana is legal, cannabis dispensaries remained open throughout the pandemic because they are considered essential. Therefore, marijuana sales have been hitting record highs in those states. Employers are now reevaluating their drug testing programs or dropping the marijuana drug test panel due to marijuana use being more socially accepted and states legalizing it.

If an employer decides, however, to continue testing for marijuana, they need to ensure that their policy is enforced consistently, towards all employees in the “job category” being outlined (eg,.testing all employees working with forklifts, or all employees working in Sales and driving to clients).  In determining when or whether to test, it is incredibly important that employers be familiar with the state and local laws governing the use of marijuana and regulations on testing in locations where the employer does business.  While some states may still prohibit use of marijuana and have laxed laws allowing testing, many states that now permit medical and recreational use of marijuana may prohibit employers from denying employment to employees who test positive if they were not under the influence while at work.

This is not to say that employers have to tolerate on the job intoxication or use of marijuana even in states where the drug has been legalized. Employers can and should consider safety hazards resulting from employee impairment when establishing a policy. For this reason, more and more employers are treating marijuana use in the same way as alcohol use in that you cannot come to work under the influence. This is when reasonable suspicion testing makes sense. To note, post-accident testing can cause some problems because marijuana stays in a person’s systems for a long period of time, and it will not necessarily be clear just from the drug test whether the employee was actually intoxicated at the time of the incident. For this reason, it is recommended that, rather than relying solely on the drug screen, managers and supervisors should be trained to test for impairment using observable fact-based criteria demonstrating current intoxication, such as:

• Strong odors

• Questionable movements, twitching or staggering

• Dilated pupils or watery eyes

• Flushing, confusion or blank facial expressions

• Slurred speech or an inability to verbalize

• Drowsiness or argumentative or irritable behavior

• Sleeping, falling unconscious or otherwise being unresponsive

Additionally, although employers are not required to accommodate on-the-job impairment from medical marijuana use, they may be required to provide other accommodation to the employee such as time off, or making changes to their schedule while they are medicated. A reasonable accommodation policy should be included in the organization’s guidelines.

If employers choose to abstain from conducting a drug test, they can still monitor for performance issues that may stem from drug or alcohol abuse. It is important to document and discipline inappropriate behavior.
The most important thing for employers to remember as they are creating or modifying their drug testing policy is to be consistent in policy enforcement across the organization and ensure compliance with state and local laws that may vary from jurisdiction to jurisdiction.

 
See how Renewed HR can help you navigating through these issues of supporting a drug free work environment, while ensuring compliance with local regulations.