Marijuana and Workplace Drug Testing

While drug testing is not new, the legalization of recreational marijuana in states like Washington, Colorado, Oregon and Alaska has added a question mark for some employees. Even though recreational users may be responsible and not let marijuana use impact their work lives, should they still be afraid of company drug policies? Marijuana used on a weekend doesn’t mean marijuana was used at work, though present drug tests cannot tell the difference.

A recent concern has been the strict nature of drug testing and drug-use policies in the workplace and how they might be eliminating great prospective hires from consideration, especially concerning zero tolerance policies that sometimes extend years into the past. For example, the CIA questions use of marijuana up to 12 months prior to application, while the FBI and some police agencies look as far back as three years.

A zero tolerance stance, something very common among employers in the United States, automatically eliminates many prospective employees who are fresh out of college and looking for a job. This is especially worrying in states where recreational marijuana is now legal. After all, in 2013, 36 percent of college students reported trying marijuana sometime in the previous year.

The issue is that while zero tolerance policies—these often mirror the federal Drug-Free Workplace Act of 1988 and the Drug-Free Schools and Communities Act Amendments of 1989—are not completely unreasonable, they are beginning to conflict with state laws that are overturning the federal stance on marijuana.

In Washington and Colorado, the two states that have had legal recreational marijuana over a year now, positive drug tests have increased by more than 20 percent.

Peter Cappelli, a professor of management at The Wharton School, sees these policies as a hindrance to employers as well as the potentially employed, but he does not think they will be adjusted anytime soon. “My guess is that [companies will] just continue to suffer from it, that it’s harder to hire people, because it’s politically too difficult to explain.”

Unless an employer is an extension of the federal government in some shape or form, drug testing laws actually vary state to state. This includes not just the extent to which employees can be tested, but how much notice they must be given prior to being tested and how employees are advised of procedure.

In Washington, there are no statutes or laws that have been passed specifically dealing with drug testing. This means that private companies are free to drug test as they wish so long as no other law is violated in the process. This is completely different in states like Connecticut, where drug testing is only allowed in specific situations.

In Connecticut, pre-employment screening is completely legal, but once hired, random drug testing is only allowed under very specific circumstances. These circumstances include: the performance of federally contracted work, a high risk or safety sensitive position, operating some form of transportation or the employee agreed to testing as part of a program.

Drug testing itself has always been a bit of a hot button issue, with many groups claiming drug testing at all is a violation of employee rights. One such group is the American Civil Liberties Union, who is quick to point out that random and baseless drug screening is unconstitutional.

The important thing is to be informed and aware of your rights when working for an employer or seeking employment. Use foresight and judgment, and keep an eye on the constantly shifting laws surrounding marijuana.

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