Should We Stop Drug Testing for Marijuana?
By Kelly A. Hayden, JD, Chief Legal Counsel
Published May 15, 2018
With many states legalizing medical, recreational, or both types of marijuana, some employers find themselves asking if they should stop testing for marijuana pre-employment or during random testing. Is this something your organization should consider? Ask yourself the following and discuss with your executive team when deciding whether to move away from marijuana testing:
- Does a positive drug test for marijuana really “catch” the serious drug abusers? According to some medical professionals, marijuana contains up to 2,000 different chemicals that can stay in the body for up to 30 days. While this does not mean the employee is necessarily “impaired,” the employee will test positive. (By comparison, cocaine typically stays in the system for 2-4 days; meth for 2-10 days; and heroin for about 12 hours.)
- What is considered “impaired” in terms of a positive test result for marijuana? Unlike with alcohol, where tests have been refined and impairment limits established, such tests for marijuana are not available. If you have an employee test positive in a random screen (and he/she does not have a medical marijuana card), you will have to discuss with a medical review officer whether impairment was likely given the nature of the result.
- Even if you move away from pre-employment or random testing for marijuana, you can still conduct reasonable suspicion testing. If an employee is exhibiting signs of marijuana use in the workplace (smell, sleepiness, lack of coordination, etc.), he/she can still be sent for a test and disciplined or terminated based on the results.
Of course, several other factors may affect your decision. For example, if your employees work in a safety sensitive environment, you may decide that you just cannot take any risk when it comes to drug use.
Remember, for now, marijuana is illegal under federal law. While medical marijuana is legal under state law, Illinois law is clear: an employee does not have the right to use, possess, or be under the influence of medical marijuana at the workplace. (Although, if you have an employee test positive for medical marijuana, we recommend you consult with an attorney before acting.) Whatever action you decide to take with marijuana in your workplace, make sure you have a clear policy in place and that employees understand that at a minimum, reasonable suspicion testing is still an option.
Need help with your drug and alcohol policy? Management Association members can contact our attorneys at 800-448-4584 or email@example.com, and we will be happy to assist you in making sure you have a legally sound policy.