In statewide elections in November 2012, Washington and Colorado made headlines by becoming the first US states to legalize the non-medical use of marijuana. Colorado is leading the way while Washington’s law goes into effect later this year.
In both states, employees and employers are asking questions about the impact of marijuana legalizations on a variety of common workplace scenarios. Employees often get confused by what the legalization of marijuana actually means; believing that many of the corporate drug and drug testing policies will need to be changed. Employers are wondering if employees will be able to refuse drug tests. Contest personnel actions based on drug tests? Or avoid drug testing altogether – either as a prerequisite for hiring or ongoing employment?
Based on what is going on in Colorado NOW, the answers to these questions are a resounding NO. While it is expected that employers in both Washington and Colorado currently have the power to implement any anti-marijuana policy they want, what happens down the road, on the other hand, has some elements of uncertainty.
The following are excerpts taken from a recent article written by Stephen DeHoff, a business and employment partner at Fortis Law Partners, LLC, and published by our network affiliate, J. Kent Staffing headquartered in Denver Colorado. Mr. DeHoff outlines several factors that he believes will be considered by the courts as “zero tolerance” policies are tested.
1. Employers Need to Ensure Strong Workplace Safety Policies… which almost always includes some format for promoting and enforcing a drug-free workplace. Under current law, employers are still liable for acts of their employees that occur while on the job, which means that if an employee is impaired and makes a critical mistake that results in injury to themselves or others, both the employee and their employer are likely to be found liable for the injuries. Drug free policies are likely to be viewed as necessary to protect employers and their employees from management negligence.
2. Employers Are Not Required to Permit Employees to Use Marijuana – Even Outside of Work… at least not for now, not in Colorado. One of the biggest questions facing Colorado employers is whether or not they will be required to allow marijuana use “off-the-job;” an issue that comes up in the context of pre-hire drug testing policies. Employers who have pre-hire drug testing policies are by definition identifying “outside the workplace” marijuana users, theoretically not directly related to the use of marijuana on the job.
At the current time, this issue is resolved in the drug testers favor because at the federal level it is still illegal for people to use marijuana. This means that Colorado employers can continue to terminate or refuse to hire an employee if they test positive for marijuana or any other federally illegal drug – regardless of when, where and how the employee used the drug.
These rulings are currently under appeal and ultimately will be tested in Colorado Supreme Court. In the meantime, studies show that drug testing policies in Colorado are growing in popularity, not shrinking. Washington employers stay tuned…
3. Written policies regarding the company’s commitment to a drug free work environment are still vitally important on a number of fronts.
Mr. DeHoff outlines the following steps all employers should take with respect to their formal drug use policies:
- Make sure your drug and alcohol policies cover all drugs considered illegal under state, federal, and local laws, and
- …clearly prohibit any detectable level of any illegal drug.
- Avoid policy statements that reference “impairment” or “under the influence,” which are difficult to enforce. Stick with the drug testing “detectable level” standard.
- Make sure your policies apply to all your locations, regardless of state laws. Train your staff to deal specifically with issues involving marijuana so that issues will be managed consistently.
Thank you J.Kent Staffing for sharing your Colorado experience and asking for guidance from a trusted member of your legal community. Washington employers can take note!
At the current time, over half of our employer clients require some form of drug testing as a component of their compliance/onboarding process. The PACE Staffing Network administers all pre-assignment compliance requirements, including customized drug testing and background checks. For more information on how these new marijuana-use policies might impact your workforce and data on the incidence of marijuana use in non-drug testing environments, contact us at firstname.lastname@example.org.