In 2020, an estimated 49.6 million people used marijuana, according to the National Survey on Drug Use and Health. And the Center for Advancing Health reports that as of December 2022:
- Only six states had not legalized marijuana in any form. (These are Idaho, Kansas, Nebraska, North Carolina, South Carolina and Wyoming.)
- Twenty-one states and the District of Columbia have fully legalized marijuana, despite the fact that it is still a banned substance under federal law. (These are Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington.)
- Twenty-three states have legalized marijuana in a mixed capacity. (These are Alabama, Arkansas, Delaware, Florida, Georgia, Hawaii, Indiana, Iowa, Kentucky, Louisiana, Minnesota, Mississippi, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.)
According to Quest Diagnostics’ 2022 Drug Testing Index, in 2021, the rate of positive drug test results among the U.S. workforce was at its highest in the past 20 years. Overall, it is up 30% from an all-time low in 2010-2012.
Given statistics like these, it’s safe to assume that at some point, a portion of your workforce will use marijuana recreationally or medicinally — whether it’s legal or not in your jurisdiction. Thus, it’s important to understand your legal rights to enforce drug use policies, ensure a healthy and safe work environment, and balance all that with any additional rights employees have.
Safety at work
Employers have a duty under the Occupational Safety and Health Act to maintain a safe and healthy work environment. If someone is impaired by cannabis while working and cannot safely perform their duties, they could be putting themselves and potentially others at risk. You are required to address such situations.
This starts with crafting a comprehensive drug use policy and evenhandedly applying and enforcing it. Safety-sensitive industries are likely to have zero tolerance policies, according to the National Safety Council, but even they need to be careful when applying such policies.
In some instances, marijuana may be prescribed to treat a medical condition with authorized use under state law. If the employee can still safely perform their duties, an accommodation may be required under state law.
Privacy rights and drug screening practices
Another thing to consider is whether a workplace policy infringes on employees’ legal right to use marijuana when they aren’t working. For instance, disciplining or terminating an employee for consuming cannabis while off the clock could land employers in legal hot water in states where recreational marijuana is legal.
Employers with federal contracts may still be required to screen applicants for drug use and automatically disqualify them for positive results. However, employers that aren’t subject to such requirements may want to scale back their preemployment drug screening practices because recreational or medical marijuana may be protected under state law.
When crafting a drug screening and use policy to meet these requirements, consider questions like:
- Does the applicable state law limit your ability to perform a prehire or employment screening for marijuana?
- Is your ability to enforce a drug use policy limited under a state privacy act (assuming it’s lawful to possess and consume marijuana in your state)?
- Does the applicable state law limit the use of cannabidiol (CBD), tetrahydrocannabinol (THC) or other products with low THC levels? (THC is the substance in cannabis that provides a high.)
- Do you need to make reasonable accommodations due to medical marijuana use under state law? If so, do you know what’s considered reasonable so you don’t violate the applicable law?
- If you have a multijurisdictional workplace, how will your drug testing policy account for the various laws at play?
- How will you respond if an employee appears to be impaired on the job? (This includes any testing you may want to administer and the discipline if a positive test result is returned.)
Understandably, this can be a complex issue to navigate. As a best practice, consult with a licensed labor and employment attorney in your local jurisdiction. They can explain how state laws influence your compliance rights and obligations when it comes to managing marijuana in the workplace.
When reasonable suspicion arises
A good approach is to think about marijuana as you would alcohol. Your workplace is not likely to ban an employee from drinking when they are not on your premises, on call or working.
If you have a reasonable suspicion that someone is impaired on the job, follow your company’s established procedures for documenting the incident. For instance, a comprehensive process includes steps such as these:
- Document the concern. Who raised a complaint about the person’s behavior? Was it a coworker, a manager or someone else? What did they say they observed?
- Approach the employee to evaluate the situation for yourself. Consider whether they appear to be disoriented or experiencing blurred vision, dizziness, slurred speech other symptoms that may indicate they are under the influence.
- Have another member of management evaluate them to confirm your observations and document their findings as well as your own. (If you don’t believe reasonable suspicion exists based on both managers’ findings, end the process.)
- If the managers have corroborated reasonable suspicion, immediately remove the employee from any safety-sensitive work environment and ask them to wait in an area that is not safety-sensitive.
- Explain to the employee that they will need to consent to undergo a drug test to rule out a drug policy violation. (Refusal to consent could be grounds for discipline or termination, depending on how your drug testing policy is worded and assuming they have received a copy of that policy.)
- Provide the employee who appears to be impaired with the means to attend the drug test if it’s being administered off-site.
- Consider whether your policy allows you to keep them out of work until the test results are in.
- If the test comes back negative, return the employee to their position as soon as practicable. If it’s positive, consider the progressive discipline or automatic termination that’s warranted pursuant to your policy.
- Consider communicating with the worker about your employee assistance program (EAP) and whether the situation calls for them to sign a last chance agreement (LCA). An LCA may include provisions like:
- Employee agrees to participate in the EAP.
- Employee understands they will be subject to an unpaid suspension (of X days) for violating the employer’s drug use policy.
- Employee agrees to be subject to follow-up drug tests at random or scheduled intervals for a specified duration of time.
- Employee understands that failure to adhere to LCA terms will result in immediate termination.
With many workforces experiencing labor shortages, consider whether a positive test result should disqualify someone from work. Again, this requires balancing your duty to address workplace hazards with the legalization of marijuana. Seek counsel before taking disciplinary action against an employee for marijuana use.