In the wake of some states’ passage of legislation to legalize the recreational use of marijuana for anyone under 21, plus the continuing push to make medical marijuana legal, many questions are being asked about what that means for workplace drug testing.
A lot of workplaces that have drug testing policies in states where marijuana is legal medically and recreationally will be unsure about what these new laws mean for their policies.
Here are some important points about how marijuana legalization affects corporate drug testing.
1. Marijuana remains illegal federally.
Although 18 states and the District of Columbia have medical marijuana laws and Colorado and Washington State now have legalized marijuana, it is still classified as a Schedule 1 drug under federal law.
Schedule 1 drugs fill the following criteria:
(A) The drug or other substance has high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.
Schedule I drugs cannot be prescribed by doctors, and they cannot be produced or studied by researchers without DEA permission.
2. The new legalized marijuana laws do not address workplace drug testing.
Washington’s ballot initiative that was responsible for legalizing marijuana in that state did not mention workplaces.
Colorado’s ballot initiative said the following; “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
In layman’s terms, this means that employers’ rights to drug test employees have not been affected by the legalization law in Colorado.
3. Employers can still protect their drug testing policies under federal law.
Going back to point No. 1, because marijuana remains classified as a Schedule 1 drug under federal law, and federal law preempts state law, employers in states where marijuana is legal can protect themselves, according to Jim Shore of Stoel Rives LLP, by ensuring their drug use policies prohibit illegal drug use under both state and federal law. Their policies should also prohibit any detectable amount of illegal drugs, as opposed to a standard that just specifies “under the influence.”
4. The new legalization laws will probably mean employer/employee court battles to determine how off-work recreational marijuana use is handled.
Union attorney Dan Swedlow, cited in a Seattle Times article, predicts that enforcing drug testing policies for marijuana in Washington and Colorado is likely to be contentious and lead to some court battles. This is because drug tests don’t differentiate between marijuana smoked within the past hour on the job and marijuana smoked two days ago while at home.
5. State legalization laws probably will not affect certain industries and employers at all.
Seattle employment-law attorney Michael Subit says that jobs in the manufacturing, transportation and public safety sectors, as well as national employers probably will not alter their drug testing policies just to accommodate two states.
6. Courts across the country have a precedent for firing a person for using medical marijuana.
In 2011, the Washington Supreme Court ruled in favor of employers, upholding the firing of a call-center worker who used marijuana to treat migraines. When ruling in other cases that involve employees’ medical marijuana use and employers, judges are obligated to take this precedent into consideration while making their decisions.
7. Elected officials are one of the select few groups exempted from drug testing.
While there have been calls to have elected officials submit to drug testing, they are currently exempt from drug testing due to the decision in the 1997 U.S. Supreme Court case, Chandler v. Miller.
While marijuana laws continue to evolve in the USA and more states are likely to legalize marijuana in the future, you can help navigate the often confusing maze by keeping these points in mind.