Marijuana in the Workplace: Balancing the Risk

Trends and best practices for employers committed to a drug-free workplace

Marijuana use and testing in the workplace continues to be a controversial issue for employers, as today more than half the country has approved marijuana for medical or recreational use. Yet, at the federal level, it remains illegal. To help employers determine the best path forward for their organization, we’re sharing the latest trends in marijuana acceptance among our drug screening clients, along with best practices for balancing marijuana-related risk concerns with a commitment to a drug-free workplace.
Individual state laws pertaining to marijuana vary significantly, including who the law applies to, the quantity of marijuana permitted, who has access, how it may be obtained, liability protections and statutory requirements for authorized use.  For employers, navigating these laws can get tricky, especially if they’re operating employee drug testing programs in multiple states. Here’s fresh insight that reveals how a few top First Advantage customers are handling the issue. NOTE: This information is based on First Advantage data from March 29, 2018. 

The percent of companies that do not accept medical marijuana is significantly higher than those that do accept, based on a review of company policies that First Advantage has on file.

• First Advantage clients that do accept medical marijuana include retailers, banks, private companies and the health industry (office functions).
• First Advantage clients that do NOT accept it have policies outside MRO process for making exceptions:
• Exceptions are made related to safety position held. For example, a desk worker might be acceptable, but a warehouse worker might not.
• Exceptions are made based on their individual clients, such as a staffing agency.

States where we’re generally seeing clients accept medical marijuana (as an exception) include Arizona, California, Colorado, Connecticut, Delaware, Illinois, Massachusetts, Maine, Minnesota, Nevada, New York, Rhode Island and Washington State. As of April 2, 2018, only 25 First Advantage clients, some with multiple locations, do not include THC in their testing panel.
In response to this complex and growing issue, most employers are choosing to uphold their existing drug-free workplace programs. Here are a few best practices organizations should keep in mind as they move forward with their programs.

• Consult with your legal counsel in the context of your organization’s risk tolerance position and legal risk mitigation strategy.
• Include clear information about your organization’s position on medical marijuana, including marijuana extracts and oils such as Cannabidiol as well as legalized/recreational marijuana in your organization’s Drug and Alcohol Testing Policy.
• Watch the state and federal laws carefully and do not take adverse action or impose disciplinary consequences against an employee or applicant that makes a medical marijuana claim without consulting legal counsel.
• Consider Equal Employment Opportunity Commission (EEOC) Guidance (individualized assessment), consider job functions, and do not overlook American with Disabilities federal and state law implications.
• Monitor state and federal rulemaking/regulations and guidance.

The above information is not offered as business, medical or legal advice but is instead offered for informational purposes in a spirit of cooperation and information exchange. First Advantage is not a law firm or medical provider and does not offer legal, medical advice or business consulting advice. This article is not intended as a substitute for the legal advice of an attorney knowledgeable of the issues covered as they relate to a user’s individual circumstances or a medical practitioner. First Advantage makes no assurances regarding the accuracy, completeness, or utility of the following information.  Legislative, regulatory, case law and medical developments regularly impact on general research and medical information.