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How Does Marijuana Legalization Impact Employers

For the time being, employers regulated by the DOT carry on in the face of marijuana legalization. Their zero-tolerance policy remains unchanged; marijuana stays on the DOT drug test. Employees who test positive for the drug are subject to DOT protocol and are removed from service immediately. What about the general workforce, though?

As business owners, we strive to provide employees with a safe working environment. If we employ those who live in a state that legalizes marijuana, how do we handle an employee who tests positive for the drug? Should we remove marijuana from our testing panels?

Are we required to remove it by law?

No, we aren’t.

Legal or not, the words stoned and safety don’t work well together at all. No matter what the industry, marijuana coupled with the workplace equals risky business.

However, the times may be a changing.

There is legislation in progress that, if passed, releases the regulation of marijuana at the federal level. The States Act proposes to remove marijuana’s classification as a Schedule 1 drug. Individual states would be free to decide what marijuana legalization means for their citizens.

Marijuana & workplace accidents

There is a continued rise in the number of employees that test positive for marijuana.

Data gathered from urine drug tests for Quest Diagnostic’s annual DTI (Drug Testing Index) for 2016-2017 was sobering. It revealed a 4% rise in positive test results in the general workforce. And, in the safety-sensitive industries, the increase was nearly 8% over the same two year period.

The safety-sensitive industries include our airline pilots and truck drivers, railway workers, bus drivers, and those employed at nuclear power plants who test positive for pot. That 8% figure represents people who transport our families from here to there. And, what about the employees who use drugs that work in our nation’s nuclear power plants?

Accidents due to drug use in any safety-sensitive industry are unacceptable.

But, employees in the general workforce that show up for work under the influence are another pressing matter. They are preparing our food, building our homes and businesses, and manufacturing the products that we use every day.

It doesn’t matter if they have contact with the public or just carry out their duties in the workplace, employees who use pot at work are a problem.

Better safe than sorry, right?

The legalization of marijuana lends to the social acceptance of the drug.

In fact, many employees are surprised that it remains on their employer’s drug testing panel. They think that if it has become legal in their state that it should be removed from the workplace drug test.

But, legalization at the state level does not keep employers from banning the drug.

For now, marijuana remains classified as a Schedule 1 drug by the DEA. It is still an illegal substance on the federal level. This makes its use strictly prohibited. Ultimately, it’s a safety issue. This gives employers of the general workforce the right to “just say no.” They aren’t required to remove it from their company drug tests.

More and more people consider marijuana as a “harmless” drug. However, that does not lessen its effects on job performance.

Marijuana impairs reaction time, coordination, and attentiveness. This lowers job productivity and increases the risk of workplace accidents. Absenteeism and tardiness are more likely, as well. Employees under the influence of this drug while at work are a cause for concern.

All of the above certainly provide enough reasons for an employer to keep testing for marijuana.


Those using marijuana for medical reasons risk loosing their jobs. Employers that include marijuana in their zero-tolerance policies will enforce them. From an employer’s point of view, using marijuana for medical purposes doesn’t excuse a positive test result.

If employees are using CBD treatments, there is a chance that a drug test will come up positive, as well. This is because THC levels in the CBD oil, additive, or edible are higher than necessary. Not all manufacturers take precautions to alleviate this problem. This happens because there is no regulation in place for the extraction process. Users of these products need to do their research and find a reputable distributor.

There are some products on the market that advertise 0% THC levels. These would undoubtedly be the best choice, but even they are not a safe bet because many contain significantly more THC than the label claims.

The recreational side of things gets a bit sticky, too.

Mentioning metabolites

Drug metabolites store themselves throughout the body, mainly in the fat cells. They remain detectable in the urine up to 30 days after using the drug. Mouth swab tests are becoming more popular. Marijuana metabolites remain in saliva for up to 72 hours before a drug test.

If an employer tests with hair samples, metabolites found in the hair follicle grow out into the hair shaft. They leave a permanent record of drug use. However, the test usually only goes back for 90 days.

There is currently no way to test for THC levels at a specific moment in time. But, technology is continually evolving. Several companies are testing marijuana breathalyzers. They hope to have them on the market soon. Mouth swab technology is also becoming more advanced.

The amount of time a person is impaired after using marijuana is about two hours. It’s detected for much longer, however.

Until we can determine if an employee is high on the spot, many employers will not change their drug-free protocol. If an employee tests positive because they use marijuana medically or recreationally, it will impact their life.

Most employers immediately terminate an employee who pops positive for drugs.

There’s no need to hit the panic button

What if an employee brings an HR related lawsuit against you due to a positive drug test result?

You shouldn’t have to give it a second thought.

If marijuana is legal in your state, contact a professional. They will take a look at your current drug testing policy. Talking with a lawyer, HR expert, or compliance specialist will ensure that the new laws won’t impact your business.

In addition, consider making your voice heard in regard to what passing the States Act means for your business. Advise others to do the same.

Always have your drug-free protocol documented in writing before implementing it. It’s your best defense in preventing a potential problem.


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    How Does Marijuana Legalization Impact Employers – Saliva Drug Testing

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