I was having a conversation with a friend the other day about drug testing. I mentioned attitudes toward drug testing were changing as a result of the legalization of marijuana in a number of states and jurisdictions. He told me his company was considering such a move because they are in a number of locations across the company and they wanted to have one consistent policy. They wanted to make sure they were being “fair”. I did not go further with the conversation, after all, it was a Saturday night and I did not want to be talking “shop.” But, that is not an unusual situation for companies to be finding themselves in as a result of the legalization of marijuana.
Thing of the past?
Influential attorney and writer, Robin Shea of Constangy, Brooks, Smith & Prophete, LLP, asks the question Will drug testing become a thing of the past? Shea, in talking about a BNA report, said that there are two reasons that drug testing is starting to diminish. The first of these is indeed the changing legal structure across the country. The second reason is that good employees are getting harder to find in a tight labor market. I guess “good” employees in many areas are inclined to take a “toke.”
Before you fold your program
Shea says there are several things that need to be considered before you close down your drug testing program. These include:
Safety still counts
Even though marijuana may be legal it still impairs performance. So for positions where safety is critical, such as operating machinery or driving a car, make sure you continue to test in safety-critical positions.
Federal law still counts
Despite state legislation, under federal law marijuana is still illegal. If you are a federal contractor you may not have the same “freedoms” that non-contractors may have.
Don’t forget jobs that are required to be drug tested
Some jobs require drug testing, such as transportation or aviation, regardless of what state law says.
Drug testing can result in saved money
Many state programs offer a discount on your workers’ compensation premium. Sometimes that savings can be substantial.
Consider keeping your program with modifications
There are several modifications you can make to your program. First, you can eliminate marijuana testing completely, though Shea recommends you keep it in place for safety-sensitive positions. Second, continue to test for Schedule 1 drugs.
She also recommends you keep testing “for cause” or post-accident.
Just remember, these laws, do not require any employer to allow an employee to have to work will in an impaired state. Just like we would not let an employee work while impaired by alcohol, we do not have to allow an employee to be impaired by any drug, including marijuana.