Marijuana Use in the Workplace

March 18, 2020

The topic of marijuana in the workplace is perhaps the most timely issue surrounding the background screening and hiring industries.  There is so much going on in the US and around the world when it comes to marijuana. From the legalization across states - with Illinois being the latest, to CBD use and legality, it’s no wonder that there are so many questions around marijuana in the workplace. 

From the perspective of employment and hiring, the impact of the legal use of marijuana can and certainly does have an effect on the workplace.

Marijuana remains the most-used illicit drug globally with upwards of 188 million users in the past year. (World Drug Report)

In our recent webinar, Bill Current, President and founding partner of Current Consulting Group, covered important aspects of marijuana use and legislation that employers should be aware of for hiring and employment.  Read on to discover what you should know as an employer.


Restrictions on Employee Marijuana Testing

marijuana_quoteThere are currently no restrictions limiting an employer’s ability to test employees for marijuana use. However, in May of 2020, New York City is expected to implement restrictions on drug tests specific to marijuana use. There are currently about 34 states that have legalized marijuana either recreationally or for medicinal purposes. 

97.6% of all drug tests include marijuana

WorkFor these states, there is an area of law called respondeat superior, which says that an employer is responsible for the acts or actions of an employee during the workday or when the employee is on company time. So, while employees are legally allowed to use marijuana, employers are still testing for the drug as a part of non-regulated drug tests. According to Quest Diagnostics, more than 97.6% of all drug tests include marijuana in their panel.

34 states have currently legalized marijuana either recreationally or medicinally

Depending on the state, there are limitations on permissible disciplinary action an employer may take if an employee is using marijuana in accordance with state law. There is pending legislation in some states that limits employers’ right to drug test for THC, specifically in Illinois. This law has not yet passed. 


Concerns of Workplace Marijuana Use

Bill sites that nearly 80% of employers report being concerned about an increase to workplace costs due to marijuana use during the workday. This is the result of studies that show that around 35% of substance abusers are responsible for all absenteeism in the workplace.  In industries that require employees to be on the road for work, there is a very specific concern. One thing that was learned from the legalization of marijuana in Colorado and Washington was the direct impact on traffic fatalities related to marijuana use.

The use, sale, and possession of cannabis over 0.3% THC in the United States, despite state laws, is illegal under federal law.

In states like Illinois and Nevada, employers are not required to permit employee’s use of marijuana while at the workplace or performing job duties, so the power in this case still remains with the employer. However, these laws state that an employer cannot base their hiring decisions on whether a prospective employee tested positive for marijuana on a pre-employment drug test. Similarly, an employee cannot be fired for testing positive for marijuana use.


Have you updated your drug testing policy recently?

New legislation is constantly being passed across the US, so reviewing your drug testing policy is crucial. These new laws could have a profound impact on your drug testing policy, especially if you're in states that have legalized marijuana or in states that have passed workplace discrimination and accommodation laws for marijuana.


Be particularly detailed in the language in your drug testing policy in order to define what “good faith belief” denotes.  Steer away from the term “impaired” because drug tests do not necessarily prove impairment.  

It's in your best interest as an employer to understand and ensure that you're complying with the language of your local medical marijuana laws. If you are operating in a number of different states, you may need several different amendments to your policy, depending on how you're going to treat the topic of medical marijuana. Make sure that you are in compliance with all the applicable state laws pertaining to medical marijuana and recreational marijuana and any limitations or discrimination language that may be in any of these laws.

Bill Current has much more insight into marijuana legislation and workplace considerations for employers. Learn more by watching the webinar here

Orange Tree can help you incorporate best practices in drug testing.  Schedule an appointment to see how we can customize a program that aligns with your vision and goals.


Topics: Background Screening, Drug Testing