The numbers aren’t good. The number of employees testing positive last year has increased steadily over the last 3 years, and is up to a 10-year high, according to Quest Diagnostics. The analysis of testing nearly 11 million workers also found that marijuana positivity increased 47% since 2013.
The problems for companies with employees who are impaired include absenteeism, loss of productivity, more accidents, more health insurance claims, and other problems that translate into significant costs for the companies. Further complicating the matter is the growing state-level legalization of marijuana.
What’s an employer to do?
Setting drug testing policy
Most employers can set their own policy, as long as it’s fair (i.e., nondiscriminatory). For example, employers can set a drug-free workplace policy, which bans employees from marijuana use (even if legal in the state) in the same manner as alcohol use.
When implementing a policy to test employees, including those who’ve been offered positions pending the outcome of a drug test, the Council on Alcohol and Drugs recommends:
- A written policy
- Access to assistance
- Employee education
- Supervisor training
- Drug testing
In crafting a drug policy, be very careful to avoid problems that could trigger lawsuits against you for invasion of privacy, wrongful discharge, or discrimination. Be sure to have your policy reviewed by an employment law attorney.
Note: Those in a business subject to federal regulations, such as those in the transportation business subject to DOT drug-testing rules, must implement a drug testing policy to be compliant with the law. Find details about the types of businesses required to have drug testing at the Substance Abuse and Mental Health Services Administration (SAMHSA).
Consequences of positive results
What can or should you do if an employee has positive test results?
Retest. Before taking any further action against an employee who tested positive, do the test again. An employee may have been taking a prescription drug that is not yet out of his/her system. Have the results reviewed by a competent authority.
Retain but reassign. Depending on the duties of the employee’s job, it may be possible to keep the worker on staff but eliminate any tasks that may create safety concerns. Combine this step with actions to end the employee’s problem (see employee assistance program).
Employee assistance program. You can provide health for workers with drug and alcohol problems. Check the company’s health plan for possible options.
Termination. If no other action is possible or desirable, employers may have grounds to terminate a worker or rescind a job offer for someone who tests positive. In fact, one case even sided with an employer who terminated someone using medical marijuana. However, extreme caution is advised before taking any such action; consult an employment law attorney first.
Resources
You can find more information from the Institute for a Drug-Free Workplace. Also, read an article on Marijuana in the Workplace: The Growing Conflict between Drug and Employment Laws.
Conclusion
Nearly half the states already have some legalization of marijuana, and marijuana laws are on the ballots this November in 10 states. As an employer, you can’t ignore the need to address your drug policy.
