With four states – Oregon, Washington, Colorado, and Alaska – as well as the District of Columbia now having legalized the recreational use of marijuana, many employers are concerned about how their policies and hiring practices are going to be affected. Even if you are not in a state that has legalized marijuana, the trend is clear and the next several years are going to bring new challenges and adjustments for employers nationwide. There are common threads to the concerns being voiced by employers, especially regarding zero-tolerance policies and their ability to ask questions about potential employees’ drug use.
One way to view marijuana is through the lens of your alcohol policies. Alcohol is a legal substance, and your employees are allowed to consume it off the job. However, when an employee crosses your doorway with alcohol in their system, when it impacts their performance and the safety of your workplace, you have the legal right to terminate that employee. You are legally able to proclaim a zero-tolerance policy, and to test your employees for intoxication on the job; marijuana is no different. You are also protected because, at least for now, marijuana is still an illegal substance under federal law.
When it comes to testing, there are some differences between how alcohol and marijuana tests measure each intoxicant. A test for alcohol will only return a positive result if the employee is intoxicated (as defined by your policies) at that moment. Marijuana, on the other hand can remain in someone’s system for some time, perhaps long after they are impaired by its effects. As time goes on, science will catch up to the law and drug tests will become more sensitive and able to pinpoint a level of impairment as can be done with alcohol; however, at this time it’s not the employer’s responsibility to determine what level is “okay”. If a drug test is positive, the person could be arguably impaired, and would therefore violate your company’s policies. The Society for Human Resource Management (SHRM) recently quoted David Symes, a Portland, Oregon attorney, as saying, “For recreational marijuana use, if an employee has THC in his or her system but does not appear impaired, your drug-free workplace policy should be in full force and effect.” In other words: until the law determines an acceptable level, you may deem any level unacceptable.
Similarly, Insight’s integrity tests allow you to legally ask your potential hires about their alcohol and drug use, and are scientifically designed to elicit those honest answers. Your rights to ask someone, through Insight’s tools, about their propensity to abuse alcohol, and to smoke marijuana have not changed, because your rights to keep these activities out of your workplace are still fully in force.
As with any major change, the key is to making sure your policies regarding marijuana use are up-to-date, communicated clearly and widely, and are evenly applied to your workforce and your applicants.
