Drug Testing in the Era of Marijuana Legalization – EHS Today

How can an employer continue to pursue a drug-testing policy in the midst of the continuing trend of states legalizing marijuana for both medical and recreational use, especially when these states’ laws run up against federal laws that still ban the psychoactive drug’s use?

It can be hard to do so, but it is still possible, according to attorneys J. Christopher Selman and Alexander Thrasher of the law firm of Bradley Arant Boult Cummings LLP. “This rapidly evolving legal landscape presents new challenges for employers, particularly those with offices and employees in several states,” they admit. “Employers must balance complying with often divergent federal and state laws, maintaining a safe work environment and protecting employees’ rights.”

Most employers today have implemented a zero-tolerance policy that bans the use of alcohol and illegal substances for obvious safety reasons, but new state laws can create additional problems partly because those company policies usually exclude prescription drugs when a worker informs the employer about using them.

At one end of the spectrum, some states require that employers must accommodate an employee’s use of medical marijuana. Late last year a Connecticut federal court held that a federal contractor could not enforce its zero-tolerance drug policy against a medical marijuana user for this reason. Also, an Oklahoma law prohibits adverse actions taken by an employer that are based on finding out that an employee is a medical marijuana card holder or that result from a positive drug test unless the employer is required to or would lose a benefit under federal law or regulations.

Problems also can crop up from the trickiness of coming to an unassailable determination that an individual is actually impaired, thus warranting a drug test. This difficulty in defining and establishing what constitutes impaired behavior creates liability for the employers. It

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