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March 14, 2014

Washington and Colorado became the first states to legalize the recreational use of marijuana. And while advocates celebrated these events, claiming that the laws prohibiting this type of activity were antiquated and resulted in extreme punishment for what has become the most common illegal drug used in the country, issues related to employment screening arose that have yet to be resolved. 

As lawmakers work out all the details, we wanted to provide some of the issues that your company can anticipate and questions to be addressed, if/when your state legalizes medical and/or recreational marijuana use.


Myth Busting: Marijuana is Not Legal in Washington and Colorado Under Federal Law

First, we need to address what is truth and what is not regarding the laws in these two states. Yes, there are now laws on the books in both states that say the possession of marijuana for recreational use by anyone 21 years of age or older is permitted. However, federal law still considers marijuana a Schedule 1 illegal substance which means anyone who possesses it for any reason is still technically breaking the law. 

The gray area comes from the enforcement of the law. Since these two state have decriminalized marijuana possession for recreational use, law enforcement officials from those states will not arrest those who are found possessing marijuana. Federal officials, however, could make those arrests. However, since more than 95 percent of marijuana-law arrests are made by state and local officials, it would be very difficult for Federal officials to consistently enforce the federal law simply due to a lack of resources. 

They just don’t have the manpower to be effective towards that end. The net result is that the state laws will be what police in those states enforce and people who possess marijuana for recreational use, within the limits of the law, will have little fear of arrest.


Screening Issues for New and Current Employees

With the changes in marijuana laws come many challenges for employers related to how they can enforce drug policies. Consider that marijuana can stay in a person’s system for up to six months. Unlike alcohol which clears a person’s system relatively quickly and thus it can be determined if a person is under the influence while at work, the longevity of marijuana staying in the system makes this far more difficult. This could result in a positive drug screening for marijuana months after consumption and which, in the past, would have been clearly against the law in all states. With the change in the laws in Washington and Colorado, employees may think that they now have the “right” to use marijuana outside of the workplace without fear of repercussion if they test positive. 

Adding to the confusion and possible controversy is medical marijuana. As of February 2014, twenty states and the District of Columbia had legalized the use of marijuana for medical purposes. Again, this will possibly give employees a false belief that they have the right to use marijuana under the auspices of the new laws and that it should have no impact on their employment. There are many other scenarios from which much confusion, and even legal action, could arise due to these new laws. The best tactic a company can take is the development of a comprehensive drug policy.


Developing a Drug Policy

Establishing a drug policy and providing employees with it is critical to prevent any issues that could arise as a result of law changes. A few elements we suggest to be included in a comprehensive drug policy are: 

  • Awareness: Make sure that all employees and applicants are made aware of the policy and give them access to the full policy for a thorough review. 
  • Statement of Drug-Free Workplace: It will be important to state that your company operates a drug-free workplace for the safety of all employees and violations will not be tolerated for any reason.  
  • List of Unacceptable Activities: Create a list of activities related to drug use that will not be tolerated. An example would be bringing an illegal substance or drug paraphernalia to the workplace. 
  • Screening Activities: Employees and applicants will need to be made aware of how your drug screening activities are conducted, who is subject to the screenings, and how often screening may be conducted. 
  • Enforcement Procedures: If a person is found to be in violation of the drug policy, there should be no confusion as to what the consequence of that will be. Applicants will need to be aware that a positive test for any illegal substance, including marijuana since it is considered illegal by the Federal government, is grounds for their employment application being denied. Likewise, employees will need to understand that if a drug test returns a positive result, their employment contract is subject to termination. 
  • Clarity: Ensure that employees and applicants review and understand the policy by requiring a signature thereby accepting the policy and agreeing to abide by it.

The risk landscape is changing. As more states continue to change laws relating to recreational and medical marijuana use, the job of enforcing a drug policy by companies gets more complex. It is important to stay abreast of new and revised legislation and how it affects your policies so that you can avoid policy conflicts in the future. 

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