The legalization of marijuana in some states has sparked questions in the minds of construction business owners. From employee interactions to workplace legalities, it’s no wonder employers feel dazed and confused about how to manage in this new frontier. And with conflicting information coming out every day, it’s high time to be blunt about how exactly to ensure workplace safety while following workplace drug testing laws.
Although laws on marijuana use can vary from state to state, there are some essential things to know when it comes to states where it’s now legal, whether for medical or recreational purposes. Due to the risks faced, it’s imperative that employers in the construction industry take appropriate steps to protect their businesses from HR issues and legal liabilities by staying up to date on current marijuana and drug testing laws.
Following are the top three things employers should know when it comes to legalized marijuana.
1. Businesses can still drug test—even in many states where marijuana is legal
One thing is certain: There is no wiggle room for marijuana in the workplace, especially in an industry that deals with giant structures, power tools, high voltage and dangerous chemicals on a daily basis.
Employees can still be drug tested by their employer, and they can still be fired for failing a drug test—even in many states where marijuana use is legal and even if they are not under the influence at work. Even after the intoxication wears off, a user still suffers from reduced reaction time and poor judgment for up to 24 hours following the initial use. This presents a tremendous safety issue in an already dangerous industry.
While employers do have the right to enact drug testing policies for marijuana use, it’s not required for all businesses in some states. The exception to that rule is any company that does work for, or receives funding from, the federal government or is required to follow the Department of Transportation’s drug testing regulations. These employers are required to test for marijuana.
It’s also important to point out that in addition to requiring marijuana drug testing, the updated 2018 DOT drug testing regulations have been expanded to include four additional semi-synthetic opioids that are frequently abused.
2. Employers must have and follow a written drug testing policy
Regardless of whether a state has legalized marijuana, employers must still have and follow a written drug testing policy.
When creating a drug testing policy, business owners should be up to date on the current laws in their state. For instance, certain states make a distinction between recreational marijuana and medical cannabis use, so the proposed policy should include details around this as well. It’s important to point out that even in cases where employees are consuming medical marijuana with a legitimate prescription, they still may be fired by their employer if a drug-free workplace policy is in place.
There are some important questions an employer should ask when creating a written drug testing policy. This list is by no means exhaustive, but it is good starting off point for employers in implementing their own policies.
Employers should consider the following.
- What does it mean to be under the influence of marijuana?
- What happens if/when employees self-disclose a medical issue that is treated with medicinal marijuana?
- Where can employees find resources about marijuana usage and drug abuse?
- What definitions does the policy include for “marijuana,” “recreational use,” “cannabis” and other similar words and phrases?
- What specific policies are in place about marijuana in the workplace?
- What penalties are there for failing a drug test?
Considering these questions will aid employers in drafting a drug testing policy that makes sense for them, their business and their employees.
A poorly crafted drug testing policy can open the door to legal liabilities. Creating a thorough and effective drug testing policy that properly protects the employer requires a solid understanding of state and federal marijuana laws.
If employers have questions around making and upholding a drug testing policy, it is recommended they consult with an HR lawyer or compliance specialist. In doing so, they can stay ahead of the curve and protect themselves from legal headaches (and employee complaints) in the future.
It’s also important to note that how the policy is handled sets a legal precedent for the future. For example, if an employer chooses not to test in spite of the policy, or to ignore test results, they are giving employees who are tested legal grounds to fight the results. This creates a potential legal minefield for employers.
3. There are specific guidelines for HOW and WHEN to conduct drug testing
There are specific guidelines around how and when businesses can conduct drug testing. Even in states where recreational and medical marijuana use is legal, employers must follow the laws laid out by their state.
It is important for employers to adhere to state, federal and industry guidelines when it comes to drug testing. Below are some of the most common guidelines to know.
- Test with integrity. Employers must get consent from their employees before administering a drug test. If an employee refuses, they can be placed on leave or fired, depending on how the drug testing policy is written.
- Businesses must test if they are regulated by the DOT or receive federal funds. Businesses that are regulated by the DOT, such as motor carrier, aviation, railroad, public transportation, pipeline and maritime industries (or those that receive federal funding), are required to follow federal laws on marijuana use and thus need to abide by federal drug testing policies.
- Testing may take place before or during employment. Businesses that employ 15 or more employees must follow the Americans With Disabilities Act and cannot drug test an individual prior to an offer of employment. For other businesses, drug testing can be part of the pre-hiring process.
- There are state-specific guidelines. Drug testing policies can vary state to state. Click here to learn more about state guidelines.
It is the employer’s responsibility to know and follow the specific laws for how and when to conduct a drug test. There are very specific laws governing what is acceptable under pre-employment, random, post-accident and reasonable suspicion drug testing, and they vary by state.
