If Marijuana is Legal in My State, Can Employers Drug Test Their Employees?

With the legalization of marijuana in several states, more people are beginning to use cannabis recreationally. However, this change in state laws has left many employees wondering about the implications for their jobs. Specifically, can employers still require drug tests even if marijuana use is now legal in their state? 

The answer is yes, employers can still require drug tests and potentially fire employees for testing positive for marijuana, but there are numerous factors and legal considerations that both employers and employees need to understand.

This blog post will cover what employers need to know about drug testing in states where marijuana is legal, including legal considerations and best practices for maintaining workplace policies.

Which States Have Legalized Marijuana?

Doing business in a state where marijuana is legalized adds complexities to creating workplace policies and managing workers' compensation claims. As of now, marijuana is legal for recreational use in several states across the U.S., including:

• Alaska
• Arizona
• California
• Colorado
• Connecticut
• Delaware
• Illinois
• Maine
• Maryland
• Massachusetts
• Michigan
• Minnesota
• Missouri
• Montana
• Nevada
• New Jersey
• New Mexico
• New York
• Ohio
• Oregon
• Rhode Island
• Vermont
• Virginia
• Washington

Additionally, recreational marijuana is also legal in Washington, D.C. All of these states have various regulations regarding the amount of marijuana that can be possessed and the number of plants that can be grown for personal use

Employees living in states where marijuana is legalized often view its use as a cultural norm and a personal choice. Many believe that what they do outside of work hours, especially in their private lives, should not be subject to employer scrutiny or influence. However, the legality of marijuana at the state level does not necessarily override an employer's right to maintain a drug-free workplace or enforce policies against drug use. Employers retain the authority to implement drug testing programs and enforce policies that align with their business needs, workplace safety concerns, and compliance with federal regulations, regardless of state laws permitting recreational or medical marijuana use. 

Employees Struggle with Workplace Drug Policies in States with Legal Marijuana

Many employers choose to maintain straightforward, strict no-alcohol or drug policies. However, in states where marijuana is legal, employees often find these policies confusing, especially regarding the boundaries between work and personal time. Many employees believe that as long as they refrain from drug use during work hours or while on company premises, they are complying with policy. But marijuana can stay in the system for days, potentially impairing judgment even when consumed outside of work hours.

Employers who lack explicit drug testing policies and have not historically conducted tests may also inadvertently signal to employees that using marijuana is permissible during work, provided they do not exhibit signs of impairment. Some individuals may subjectively feel that marijuana helps them manage stress or work better. This assumption, however, can create potential risks and impact a business’ effort to maintain a safe and legally compliant workplace.

Why Should Employers be Concerned about Employee Marijuana use?

While there may be concerns about appearing overly strict or unsupportive of personal freedoms, the reality is that legalized marijuana use can significantly affect workplace safety and performance. 

One of the foremost reasons employers should be vigilant about legalized marijuana use among employees is its potential impact on workplace safety. Marijuana can impair cognitive function, coordination, and reaction times, which are critical for maintaining a safe work environment. For instance, in safety-sensitive industries like manufacturing or transportation, impaired employees could lead to serious accidents, injuries, or even fatalities. 

Imagine a heavy machinery operator or a delivery driver navigating tasks while impaired—it’s a recipe for disaster. Even in office environments, impaired employees may struggle with tasks requiring concentration or problem-solving skills, affecting team dynamics and project outcomes.

Can Employers Restrict Employees From Using Marijuana Outside of Work?

Yes, employers generally have the right to restrict employees from using marijuana outside of work, even in states where it is legal. Marijuana can remain detectable in someone’s system through urine tests for up to several days to weeks after use, potentially impacting cognitive function and coordination during this period.

Even if an employee uses marijuana legally and off-duty, residual effects can persist into working hours, impairing their ability to perform tasks safely and effectively. Impaired cognitive function may lead to decreased concentration, slower reaction times, and impaired decision-making abilities, which are critical in many work environments. This impairment poses safety risks not only to the individual but also to coworkers, clients, and the public, particularly in safety-sensitive industries such as transportation, manufacturing, and healthcare. 

Therefore, employers have a vested interest in maintaining policies that ensure employees are not impaired by marijuana or any other substances while on duty, emphasizing workplace safety and productivity.

Is a Blanket Ban on Marijuana the simplest solution?

As an employer, opting to implement a blanket ban on marijuana can seem like the simplest approach to ensure clarity and consistency in workplace policies. This decision avoids the complexities of trying to distinguish between on-duty and off-duty use and reduces the risk of impaired performance due to lingering effects of marijuana. Additionally, a ban may align with broader company objectives related to safety, productivity, and regulatory compliance. 

However, such policies should consider legal requirements, employee rights, and potential impacts on recruitment and retention in jurisdictions where marijuana use is legal and culturally accepted.

Can an Employer Surprise an Employee with a Random Drug Test?

If an employer does not have an established policy or history of conducting drug tests, surprising employees with random marijuana tests could be legally complex and potentially problematic. Generally, employers are expected to communicate their drug testing policies clearly to employees in advance, outlining when and under what circumstances testing may occur. Without a pre-existing policy or prior practice of testing, employees may argue that they did not have fair notice or consent to such testing, which could lead to legal challenges or grievances.

Employers should consider consulting legal counsel to understand their rights and responsibilities regarding drug testing, including the implications of initiating random tests without a documented policy in place.

Can a Drug Test be Given to an Employee After a Workplace Incident or Injury?

If there is an accident at work and an employer suspects that marijuana use may have been a contributing factor, they may have grounds to conduct a drug test as part of their investigation into the incident. In such cases, employers are generally allowed to administer drug tests, including for marijuana, if they have reasonable suspicion based on observable behavior or circumstances surrounding the accident.

However, it's important for employers to follow legal guidelines and ensure that any testing is conducted fairly and in accordance with applicable laws and regulations. This includes maintaining confidentiality, using certified testing facilities, and respecting employee rights throughout the process. Employers should also consider consulting legal counsel to ensure compliance with local laws and to minimize the risk of legal challenges.

Can a Worker’s Compensation be Denied if the Employee Shows Evidence of Drug Use?

Potentially yes, a workers' compensation claim can be denied if an employee tests positive for marijuana, depending on the circumstances and applicable state laws, but it not something that is guaranteed. Ultimately the decision may end up with a judge. Here’s an example to illustrate this:

Example Scenario:

John works in a manufacturing plant operating heavy machinery. One day, while operating a forklift, John is involved in an accident resulting in injuries to himself and damage to company property. As per company policy and industry standards, a post-accident drug test is conducted, and John tests positive for marijuana.

Reasons for Potential Claim Denial:

1. Violation of Workplace Policy: Many employers have strict drug-free workplace policies that prohibit employees from being under the influence of drugs, including marijuana, during work hours. If John's employer has such a policy in place and John's test results indicate marijuana use, his claim could be denied based on violating company policy.
2. Contributing Factor to the Accident: Employers may argue that John's marijuana use impaired his ability to operate the forklift safely, contributing to the accident. This argument may be supported by the presence of marijuana in John's system during the post-accident drug test.
3. State-Specific Laws: Some states have laws that allow employers to deny workers' compensation benefits if the employee's use of intoxicating substances (including marijuana) is deemed to have contributed to the accident or injury. These laws vary by state and may impact the outcome of John's claim.

How can Employers Ensure a Drug Free Workplace?

In states where marijuana has been legalized, employers face the challenge of maintaining a drug-free workplace while respecting employee rights and state laws. Here are some proactive steps employers can take to discourage marijuana use among employees:

1. Establish Clear Policies: Develop and communicate clear drug-free workplace policies that outline expectations regarding marijuana use. Clearly state whether recreational marijuana use is prohibited or allowed only under specific circumstances, such as medical use.
2. Educate Employees: Provide education and training sessions on the potential impacts of marijuana use on workplace safety and performance. Ensure employees understand the consequences of impairment and the importance of maintaining a drug-free environment.
3. Implement Drug Testing: Consider implementing drug testing programs as part of your workplace policies. Specify the types of tests (e.g., pre-employment, random, post-accident) and the substances tested for. Drug testing helps deter marijuana use and identifies employees who may be impaired on the job.
4. Promote Alternative Support: Offer support programs for employees struggling with substance use issues, such as Employee Assistance Programs (EAPs) or access to counseling services. Create a supportive environment where employees feel comfortable seeking help if needed.

Proactively Manage Your Workers’ Comp Claims With Alloy

Regardless of the status of recreational marijuana in your state, employers should always be doing what they can to stay on top of their Workers’ Comp Claims by ensuring a safe workplace, maintaining clear policies and proactively managing claims that do arise. Alloy Employer Services works to help companies navigate the intricacies of Workers’ Compensation in order to reduce injuries and lower costs. Contact us today to learn how you can save on your workers’ compensation expenses.