The November election brought new measures that make recreational pot use legal in California, Massachusetts, Maine, and Nevada. It also legalized or expanded medical marijuana measures in Arkansas, Florida, Montana and North Dakota. These new laws make marijuana legal in one form or another in 28 states. Yet marijuana use remains illegal under federal law, presenting employers with challenges when it comes to workplace drug testing and employment practices.
In fact, employers looking to maintain drug-free workplaces face a confusing patchwork of state and federal laws, and it is a gray area in some states whether employers can fire or discipline workers for pot use, according to employment lawyers.
For example, in Massachusetts and California, where recreational and medicinal pot use is now legal, attorneys are warning employers to tread carefully when testing workers for pot under drug-free workplace policies. Firing or disciplining a worker for a positive drug test could open firms to legal challenges from employees.
Also of concern is the fact that the active ingredient in marijuana can stay in a worker’s body for several days and it may be hard to tell whether employees used the drug off or on the job. Additionally, employers are at risk for liability if workers in safety-sensitive positions are under the influence while operating heavy equipment, driving passenger vehicles or doing other tasks that jeopardize worker safety.
It’s, therefore, prudent that employers should make their policies on marijuana and drug testing clear to employees ahead of time so workers know what to expect. Such policies must clearly communicate the scenarios under which employees will be tested, what substances the employer will test for, the types of tests that will be used, the consequences of refusing to submit to a test, and what happens if an employee tests positive. Employees should be allowed to list any prescription drugs that they are taking prior to taking a test. If a positive result is returned, allow the employee to offer an explanation and document the discussion to prevent a possible claim involving the Americans with Disability Act (ADA). Additionally, drug test results and any medical information should be maintained in a file separate from the employee’s personnel file.
When it comes to pre-employment testing, there are several pitfalls of which employers must be aware. First, any test should follow a conditional offer of employment. Pre-offer testing could violate the ADA because employers are prohibited from gathering medical information about applicants. Furthermore, once an applicant becomes an employee, some states vest employees with substantial rights that may make it difficult to terminate them if a positive drug test result is returned.
Employers should seek legal counsel specific to their state since the laws vary from one state to another.
About Caitlin Morgan
Caitlin Morgan provides a broad spectrum of employers with insurance solutions including those in the healthcare sector. We offer critical insurance products to clients, including Employment Practices Liability Insurance (EPLI) and Workers’ Compensation. For more information about our solutions, please contact us at: 877.226.1027.