How HR Can Keep Their Company’s Drug Testing from Going to Pot

By Julie Henderson

Screening job candidates and current employees for drug use has been a commonplace practice for more than a decade. A variety of testing options such as urine, saliva, and hair make it easy and quick for employers to gain insight into a person’s drug habits.

The advantages of using a drug screening process is well-documented. Employees who are drug users are more likely to miss work, be late for work, and cause accidents in the workplace than their non-using co-workers. In addition, their lack of focus can affect productivity for themselves, and in some cases, their co-workers. Employers have traditionally viewed drug use as a red flag and may use the information to choose not to hire the job candidate. Current employees who are identified through drug testing either randomly or post-accident can typically expect actions to be brought against them such as a reprimand, drug treatment, or termination.

But what about weed?

While marijuana is still illegal under the Federal Controlled Substances Act, several states have passed laws permitting the use of it for either medical or recreational use. This trend is pushing employers to review and change their stance on drug screening. Should employers still drug test for marijuana? What should happen if an employee tests positive for it?

While this advice does NOT serve as legal counsel, here are some smart actions to take to re-invent your drug screening policy so it’s still relevant and helpful.

“Recreational marijuana should be treated like recreational alcohol, with the additional understanding that unlike alcohol, marijuana is still illegal under federal law. Therefore, as a general premise, employers should consider maintaining drug-free workplace policies.”

~Jill Cohen, an attorney with Eckert Seamans Cherin & Mellott in Princeton, N.J.

Set Consistent Practices by Job Description

First off, employers have a right to protect their workplace. In the past, HR has had to limit the usage of other background screening processes to comply with EEOC guidance and other regulations protecting employees. It’s no longer acceptable to check every job candidate’s credit report, for example. HR must think about every process that is currently in place and its relevance in finding a person who can fill the position.

Action plan: Review your screening process by job description and make changes based on the required tasks. Treat all job candidates and employees under the same job description in a consistent manner with regards to screening.

Know Your State’s Laws

Marijuana legalization is increasing, and chances are good there have been changes in the state your company operates, especially if your organization hires and retains employees in several states. For example, in some states, a positive drug screening result for marijuana does not automatically disqualify them from being hired. Some jobs, such as those in the transportation industry, are federally mandated to be screened with tests that DO include marijuana testing.

Action plan: Stay abreast of the laws and regulations and be nimble enough with your process to revise it as needed to stay in compliance.

Understand Medical vs. Recreational

Medical marijuana usage should be treated differently than recreational marijuana. If an employee possesses a medical marijuana card, he or she can’t be fired on that basis alone. Recreational marijuana is a different story.

Action plan: Know the difference in medical and recreational marijuana laws and have a plan for dealing with each one as relates to your screening process.

Consider New Testing Options

HR should be aware that the types of drug testing they have used in the past may not be enough as more states decriminalize marijuana. Saliva testing has been in the drug screening arena for several years but isn’t as universally popular as urine testing. For post-accident testing, saliva testing is a good option, as it can be argued that a person who tests positive with a saliva test is impaired at the time of the test.

Action plan: Consider adding saliva testing to your overall drug screening process.

Consult with Legal Counsel

By working closely with an experienced attorney, HR can feel confident they are moving the company’s drug screening process in the best direction.

Action plan: As with any important decision, HR should speak with their organization’s legal representation that is thoroughly versed in the latest information regarding drug screening and the state laws where you operate.

Accept This Isn’t A Set-and-Forget Situation

Identifying issues with your drug screening policy and editing it to account for the new marijuana laws are ongoing tasks for HR. The attitudes and trends in what are legal and acceptable are changing every year.

Action plan: Be prepared to consistently revise your policy to maintain both a safe workplace and a compliant screening policy.

HR shoulders the majority of the burden in handling their employer’s drug screening process to ensure it’s relevant, fair, and within legal boundaries. By following these tips and taking time to understand the laws in your state, you can maintain a process that is fair to your applicants and employees while still protecting the safety and productivity of your workplace.