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Legalization of Marijuana and the Impact on Businesses Legalization of Marijuana and the Impact on Businesses

The Legalization of Marijuana and the Impact It Has On the Workforce

Are you an employer who currently drug tests your employees? Is your business located in a state that has legalized marijuana for medical and / or recreational use? How has this impacted your company's hiring practices?

Test Your Understanding of Marijuana and the Workplace

Take quick True / False test to check your understanding of marijuana and the workplace. Then, continue reading for more information on how the legalization of marijuana has impacted both employers and employees, especially in the states where it has been legalized.

  • T/F: Something can be legal and illegal at the same time.
  • T/F: In states where marijuana has been legalized - for either medical or recreational purposes - it is causing problems for employers who drug test their employees.
  • T/F: Testing for under the influence of marijuana is different than testing for under the influence of alcohol.
  • T/F: If a person tests positive for marijuana, with a urine test, it means they are under the influence of marijuana.
  • T/F: An employer can legally fire any employee who tests positive for marijuana.

T/F: Something can be legal and illegal at the same time.

True. Marijuana is legal in some states, but illegally federally. Marijuana is not legal in 33 states, plus the District of Columbia (DC) for medical reasons. In 11 of those states it is also legalized for recreational purposes. However, Federal law still prohibits cannabis use. this has caused problems for businesses located in 'legal' states, in regards to hiring employees, especially for positions that require companies to follow federal laws for drug testing.

T/F: In states where marijuana has been made legal - for either medical or recreational purposes - it is causing problems for employers who drug test their employees.

True: Employers have seen a rise in current employees and employee candidates testing positive for marijuana. 'Federal requirements for drug-free workplaces still require that employees test negative for marijuana, along with other drugs.' In addition, there are companies who choose to require drug-free testing or are required to have it for 'safety-sensitive' positions, such as truck drivers, pilots, or machine operators. We are already facing a tight labor market, with unemployment rates being some of the lowest in history. Now, the employee candidate pool for certain businesses are being made even smaller - with the increase number of candidates testing positive for marijuana adding to the challenge of finding qualified employees.

Why are more candidates testing positive for the use of marijuana? One reason is due to the legalization of marijuana - for medical or recreational use. In states where it is now legal there has been an increase in use by individuals - ones who previously did not use when it was illegal.

There is also and additional problem employers are dealing with - what does a positive marijuana test result actually mean?

T/F: Testing for under the influence of marijuana is different than testing for alcohol.

True: Testing for alcohol is simple. A breathalyzer or saliva test shows immediately how impaired an individual is from alcohol. This is not the case with marijuana. Which leads us to our next T/F statement.

T/F: If a person tests positive for marijuana, with a urine test, it means they are under the influence of marijuana.

False: Marijuana test results, whether from urine, oral fluid, or hair testing, only indicates if an individual has used marijuana -- not if they are under the influence of it. "It doesn't inform you whether someone was impaired or what their usage patterns are." Measuring the level of THC, the chemical responsible for most of marijuana's psychological effects, can be difficult. Because THC is lipophilic, which means it likes fat. And for some individuals THC remains in their fat cells for a longer period of time than others. In fact, THC can stay in these cells for days or weeks. Because of this, an individual may test positive for marijuana weeks after they use it, but they are not under the influence or impaired at the time of testing. "Presence does not mean impairment."

Watch and listen to Lory Taylor, The Alpha Group's human resource manager, discuss with me the challenges of testing for impairment from marijuana.

T/F: An employer can legally fire any employee who tests positive for marijuana.

True and False: There are several factors that determine if an employer can legally take action towards an employee who tests positive for marijuana -- and they vary state-to-state. These factors include, but are not limited to: if the business is in a state where marijuana is legalized; if it is legalized, is that business regulated by The Drug Free Workplace Act; and if a state determines firing an employee, who has a medical marijuana card -- for using marijuana -- is pretected by the Americans with Disabilities Act (ADA).

The laws, in states where marijuana has been legalized, vary on how businesses are allowed to handle employees testing positive for marijuana. Some states protect employers' rights to maintain a marijuana-free workplace and discipline an employee for a positive marijuana test result. Other states support employees' rights to use marijuana outside of work, particularly in regard to medical marijuana. Still others "do not protect medical marijuana use in the language of their stature(s), but courts have interpreted protection under state disability law."

What should employers do? What are some best practices?

It is easy to understand both the employer and employee confusion and frustrations when it comes to testing positive for marijuana, and how this impacts both businesses and individuals. Until laws are more consistent and test results are more accurate, regarding the indication of impairment and under the influence of marijuana, it is recommended that employers take steps to do the following:

  • Clearly communicate company marijuana policies to all employees. Drug policies should be very specific.
  • Know your state's laws regarding the protection of medical marijuana use and the interpretation of protection under state disability law. Also, make sure you know if your company must abide by Federal laws.
  • Understand your rights as an employer to test and discipline employees who test positive for marijuana.
  • Know your obligations to maintain a safe work environment. Continue to uphold safety laws for "safety sensitive" positions and drug-free workplaces.

If you would like to learn more about the challenges and recommendations, here are several resources to begin with:

This dilemma and challenge is not going away, but will be evolving and changing. I encourage you to continue monitoring your state's policies around the legalization of marijuana and the rights of both the employer and employee. 

DISCLAIMER: The views and opinions expressed in this blog post are those of the blogger and do not necessarily reflect the official policy or position of The Alpha Group. Any content provided by our bloggers are of their opinion and are not intended to provide legal advice or a stance on the legality of marijuana.

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