Another Look at Drug Testing in the Workplace

In April 2017, I wrote an article in this newsletter titled “Testing in the Age of Medical Marijuana.” Since then, legalized recreational marijuana has grown throughout the U.S, and continues to make headlines in human resources publications and national news sites alike.

So, I think it’s time to take another look at the workplace and reconsider the often accepted zero-tolerance on drugs in the workplace.

Just last month, the Society of Human Resource Management reported that some employers are beginning to soften zero-tolerance drug policies out of a desperation to fill open positions, particularly where safety is not an essential function of the job. As I reported in my earlier article, as of July 2016, 25 states and the District of Columbia had already made marijuana a legal drug for medical use. Today, the total has jumped to 29 states, with the inclusion of recreational use. Most recently, California, Massachusetts, Maine and Nevada passed legislation legalizing recreational marijuana.

But from many employers’ perspectives, illicit drug use by employees results in greater absenteeism and decreased productivity. Companies also must protect themselves from liability for the actions of other workers.

Although the U.S. Constitution does not protect private sector employees from what may be perceived by some as an invasion of privacy, some states have laws limiting employers’ rights to subject employees or applicants to drug testing. Others provide some clarity.

While there are no cut and dry rules on this, here is a brief sampling of state drug testing policies comes from findlaw.com:

  • California: Employers awarded state contracts or grants must certify that they will provide a drug-free workplace. Contractors also must provide a written policy to their employees.
  • Florida: State law requires that preference for state contracts be given to contractors who have implemented a drug-free workplace policy.
  • Illinois: There is currently no legislation in place concerning drug testing.
  • New York: While there is no legislation concerning drug testing, random drug and alcohol testing of city bus drivers, police officers and corrections officers has been upheld by state courts.
  • Texas: Employers with more than 15 employees – and worker’s compensation coverage – must adopt a workplace drug-reduction policy of their own choosing.

It appears that the national attitude toward marijuana use is shifting, but this is not a reason to throw up your arms in despair when it comes to protecting your company and your employees. A reasonable approach to drug testing in the workplace is still a legitimate direction for organizations to take.

What perhaps needs to be reconsidered is the practice of zero-tolerance. Adopting such a stance is a bit like putting a stake in the ground or setting the red-line standard – it removes any flexibility or freedom to review situations individually and make informed and reasonable decisions.

For example, an applicant or worker may hold a state-issued permit to use medical marijuana. That same person may be working or applying to work in a position that is not safety-related. And he or she could be the type of person who would never come to work impaired by marijuana use.

Each situation needs to be considered. Adam Talli, founder and principal consultant of Arc Human Capital, recommends tailoring your drug testing for the job at hand.

In fact, some employers are reconsidering their responses to a positive drug test by someone already on the payroll.  According to Laura Hendrick, HR analyst at New York City-based Fit Small Business, some smaller employers desperate for local employees are treating cannabis much like alcohol, in the sense that as long as it’s not being used on the job, it is not necessarily a cause for termination.

The bottom line, however, is that none of the changes in an employer policy suggested here excuse any employee who is impaired on the job. Striking a balance between the changing tide of marijuana use and protecting your company and all its employees is the best way to approach an effective and fair workplace drug policy.

David Smith, PhD, is the president and CEO of EASI•Consult®. EASI•Consult works with Fortune 500 companies, government   agencies, and mid-sized corporations to provide customized Talent Management solutions. EASI•Consult’s specialties include leadership assessment, online pre-employment testing, survey research, competency modeling, leadership development, executive coaching, 360-degree feedback, online structured interviews, and EEO hiring compliance. The company is a leader in the field of providing accurate information about people through professional assessment. To learn more about EASI•Consult, visit www.easiconsult.com, email ContactUs@easiconsult.com or call 800.922.EASI.

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