INSIGHT: Cutting Through the Haze of Marijuana in the Workplace – Bloomberg Law

In the flurry of recent state legislation, employers—especially those operating in multiple states—have been forced to revisit their workplace drug policies. They quickly realized that what could have been a zero-tolerance policy 30 years ago is no longer an option across the board.

Imagine, for a minute, you are an employer with employees in multiple states (let’s take New York, Nevada, and Georgia), and at least some of those employees operate commercial motor vehicles at work.

In Georgia, you could implement a zero-tolerance drug policy with regular marijuana testing because marijuana is illegal under Georgia law, and there are no federal-law protections for marijuana use.

In New York, you must allow for the fact that medical marijuana is legal, and that it will soon be illegal to conduct preemployment marijuana testing on job applicants in New York City.

And in Nevada, you would have to consider that medical and recreational marijuana are legal, and that employers may no longer deny employment to applicants because of a positive marijuana screening test (with certain exceptions).

But, don’t forget, some of your employees operate commercial motor vehicles, and under federal law, a person is not qualified to drive a commercial motor vehicle if they use marijuana.

Are Workplace Drug Policies Worth the Hassle?

It may be tempting for employers to remain wistfully unaware of developments in state legislatures across the country and avoid taking an official position on marijuana in the workplace until there is more uniformity, but that strategy carries significant risk.

For starters, many states require that drug and alcohol policies be written down and distributed to employees, especially where an employer intends to conduct testing. Moreover, the generations currently entering the workforce highly value openness and transparency, and a clear workplace drug policy can help recruit and retain new talent.

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