Earlier this month, Maine became the first state to protect workers from adverse employment action based on use of marijuana. This protection only applies if marijuana use takes place outside the workplace. To prepare for these new laws, the Maine Department of Labor removed marijuana from the list of drugs that employers are allowed to test for.
Despite this trend, employers need to consider how marijuana use impacts their ability to provide a safe workplace. The individual right to use marijuana does not override the right of employers to provide a safe and drug-free workplace.
To balance these needs, employers must ask themselves several questions:
Does my company operate in the public or private sector?
Legislation and case laws are handled differently depending on an employer’s sector. For example, companies that operate in the public sector must comply with stricter federal guidelines.
Does a conflict between federal and state marijuana laws affect my business?
Drug policy is an area where the federal and state government can both have jurisdiction. An employer’s marijuana policy should account for possible conflict between these laws.
Does my industry have specific laws for marijuana testing?
Drug regulations and agencies that enforce them varies from industry to industry. For instance, the new Maine laws do not affect federal testing required for commercial motor vehicle drivers.
Is my policy in compliance with EEOC guidelines?
Regulations from the Equal Employment Opportunity Commission (EEOC) seek to remove barriers that discriminate against a job applicant because of that person's race, color, religion, sex, national origin, age, disability, or genetic information. Although US law is shifting towards legalizing marijuana, there are still thousands of people with past criminal records. Statistically, people of color are more likely to be arrested and convicted. Therefore, making marijuana a bar to employment has a disparate impact.
Does my policy affect my ability to recruit workers?
According to a 2017 Gallup Poll, a record high of 64% of Americans support the legalization of marijuana. With growing acceptance towards marijuana, employers need to consider how their policies impact workforce development.
Steven Rothberg, HR thought leader and Founder of College Recruiter, said, “If you live in a state where laws and attitudes are changing, HR would be wise to get a pulse on what their current and future employees think about changing the policy. Organizations which fail to adapt to changing market situations, including changing attitudes and laws related to issues such as marijuana usage, will likely struggle to thrive as they will find it increasingly difficult to attract and retain the best talent.”
Implementing Marijuana Testing Is a Joint Effort
Ultimately, the decision of whether to test for marijuana rests upon the employer. State laws are moving in the direction of legalization. However, there are still many industries federally required to test for marijuana. It’s the employer’s responsibility to research state and federal laws and choose a testing policy that best fits their needs.