Marijuana in the Workplace FAQs

Marijuana can be a hazy issue for small business owners. Here’s what you need to know about drug tests, policies, and more.

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Editor’s note: This article is for informational purposes and is not meant to provide legal, regulatory, accounting, or tax advice.

The national landscape is shifting when it comes to marijuana. As states change their drug laws, employers are left to grapple with the impact of marijuana usage in the workplace.

Here are the most common questions employers ask …

If marijuana is legal in my state, can I still drug test my employees for that substance?

Yes. Although marijuana may be legal in some states, it’s not considered lawful under federal law. In fact, workers who operate commercial vehicles must undergo drug testing, as mandated by the Department of Transportation.

Employers are still allowed to test employees for drug usage to maintain a safe work environment. For many professions, such as healthcare providers, working while under the influence can be considered a safety issue.

Dish Network exercised its right to drug test in Colorado, conducting a screening for marijuana usage within its workforce. One employee failed the test and was terminated. The ruling came down to the fact that even though marijuana is legal in the state, the employee’s use of the substance was deemed unlawful at the federal level.

For employers in states where marijuana is legal, it’s imperative to create clear and coherent workplace drug policies that spell out when employees will be tested, identify which substances will be tested for, who will conduct the test, and the timeframe for testing.

When can my company instate a zero-tolerance policy?

While a number of states have legalized marijuana, employers still have the right to institute their own policies — and businesses can instate a zero-tolerance policy at any time.

Employers do not have to tolerate marijuana in the workplace or outside of work. If they choose to enforce a strict zero-tolerance policy on-the-job and after hours, they can reprimand employees who don’t comply.

In states, like Colorado, where marijuana is legal, employers have the right to terminate workers who test positive for marijuana regardless of whether the employee used the drug while at work or when off duty. Although employers have the freedom to create and enforce their own drug policies, some organizations warn against zero-tolerance initiatives.

According to HR Dive, “Opting not to test workers for marijuana can save employers money on testing and give them access to a wider labor pool.”

After all, 1 in 8 Americans smoke marijuana.

How can I determine if my employees are impaired at work?

In some cases, marijuana in the workplace can be disruptive or even become a safety issue. If an employer suspects a staff member is intoxicated they should immediately document the behavior and then administer a drug test. This exact procedure should be outlined step-by-step in the company’s drug policy.

In which states is marijuana recreationally legal?

Remember, while it’s illegal at the federal level, 11 states currently allow recreational marijuana use, including:

  • Alaska
  • California
  • Colorado
  • Maine
  • Massachusetts
  • Michigan
  • Nevada
  • Oregon
  • Vermont
  • Washington
  • Washington, DC

In which states is marijuana medically legal?

Many states have adopted medical laws for marijuana use, including:

  • Alaska
  • Arizona
  • Arkansas
  • California
  • Colorado
  • Connecticut
  • Delaware
  • Florida
  • Hawaii
  • Illinois
  • Louisiana
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Missouri
  • Montana
  • Nevada
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Dakota
  • Ohio
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • Utah, Vermont
  • Washington
  • Washington DC
  • West Virginia

Marijuana is still completely illegal in several states, including:

  • Alabama
  • Georgia
  • Idaho
  • Indiana
  • Iowa
  • Kansas
  • Kentucky
  • Louisiana
  • Mississippi
  • Nebraska
  • North Carolina
  • South Carolina
  • South Dakota
  • Tennessee
  • Texas
  • Virginia
  • Wisconsin
  • Wyoming
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