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Higher tolerance: Should employers change drug testing policies as marijuana use is legalized?

In states relaxing marijuana laws, some employers have been left in a haze.

That’s according to national cannabis law specialist Michelle Lee Flores, an employment attorney with Akerman in Los Angeles. She said changing marijuana use laws have caused some employers to hash out new drug testing standards, while others are still skeptical about implementing higher-tolerance policies.

“Here in California, when adult use was passed, there were some pretty empowered employees in this state thinking it’s legal and they can do anything,” she said. “And there was a lot of misinformation and a lack of information. Employers were wondering what they’re able to do about it.” 

As more states embrace recreational marijuana, more workers are testing positive for weed, according to a new report. The number of employees and applicants who tested positive for marijuana jumped 10% last year to 2.3%, according to an analysis of 10 million drug tests by national laboratory Quest Diagnostics Inc.

To stay competitive in states like California and Colorado, a growing number of employers are doing away with marijuana testing and focusing more on whether workers are impaired on the job. Those hiring safety-critical positions are maintaining zero-tolerance policies. While others, considering marijuana is still illegal under federal law, are continuing to ban its use. 

Now with medical marijuana legal in both Illinois and Iowa — and with Illinois eyeing recreational use in the near future — the cannabis conundrum has hit the Quad-Cities. 

“It’s a problem that runs rampant through both sides of the river,” said Matthew Pappas, a management labor attorney in Rock Island. “Companies are wondering what they should test for. A lot of companies are developing policies where marijuana is being dropped off for non-safety-sensitive positions. They’re looking at it from a recruitment and retention standpoint, because it’s a competitive market.”

Clearing the smoke: What to know about drug testing

While Illinois has no statewide law on drug testing, Iowa has one of the most restrictive ones.

For employers with operations on both sides of the river, Pappas advises following the more restrictive policy to be safe. And, companies — especially those with federal contracts — must also comply with federal law, in which marijuana remains illegal.

In both Illinois and Iowa — where medical marijuana is legalized — employers are required to accommodate workers’ disabilities, said John Doak, a partner with Katz Nowinski law firm. Similar to prescription medications, employers cannot prohibit workers from taking needed medication unless they are in a safety-sensitive position. 

“You have to determine whether or not a reasonable accommodation can be made for someone on opioids or other medication, and whether they can perform essential job functions in a safe manner,” he said. 

Flores said employers must comply with the Americans with Disabilities Act and any state disability laws. 

The legal recreational use of marijuana is a different situation, she said. Just because employees are allowed to light up a joint at home, doesn’t mean they can’t be penalized for showing up to work impaired.

Flores said many employers will likely start to treat marijuana use as they have treated alcohol use for decades. 

“Everyone can understand if you come to work drunk, you’ll suffer the consequences because you’re creating a safety concern for yourself and your coworkers,” she said. “It all comes down to being impaired at work.” 

With legal pot, here’s how to deal

For employers looking to adopt new drug testing policies in this new reefer-friendly economy, Pappas said impairment on the job is the key issue.

He recommends all companies maintain “reasonable suspicion” and “post-accident” drug testing practices.

“Reasonable suspicion is the test I firmly believe in,” Pappas said. “If someone is showing signs and they get in an accident or hurt somebody, you should be able to test for whatever. And if they were impaired, they should suffer the consequences.” 

Flores cautioned it’s critical to understand the signs of drug use. 

“I think there’s a more substantial need now than ever to educate those who are in charge of determining reasonable suspicion,” she said. “It’s not just the smell of alcohol, it now could be blood-shot eyes. But someone could have allergies and have blood-shot eyes. So, that’s where the education comes in. Is it reasonable? And are you implementing your rules across the board based on actual suspicious conditions?” 

Random drug testing can be difficult to implement in workplaces, Pappas said, unless employee positions are safety-sensitive. Companies with employees operating heavy machinery, working on construction sites or dealing with patients in a medical setting may have little choice but to randomly drug test. 

He added workplaces with a “systemic problem” of drug use may have no other choice but to implement random drug testing. 

And, Pappas said the decision to require pre-employment drug testing can be left up to each business. Some companies have decided to keep pre-employment screenings, but have removed marijuana from the list of drugs being tested. 

“From one perspective, if you’re going to hire somebody and they have a drug test to pass, and they know they have a drug test to pass, but they can’t pass it — do you really want them working for you?” he said. 

On the other hand, as marijuana is legalized and more people start lighting up on a regular basis, doing away with marijuana on drug tests could be one way to compete for employees in a tight labor market.

No matter what drug testing policies companies implement, Flores said it’s critical to communicate current laws and policies with employees.