4 Best Practices for Addressing Medical Marijuana in Drug Testing Policies

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Organizations benefit from a sound drug-free workplace policy as it helps ensure a safe and productive work environment, minimizes liability and helps comply with federal, state and industry regulations. However, recently passed medical marijuana legislation can make creating or maintaining a drug testing policy a difficult task, especially when combined with the risk and safety factors of various job functions.

When developing or reviewing a drug testing policy that addresses medical marijuana, employers should consider these four best practices to help ensure a safe and compliant workplace:

1.  Consider federal status
If a company is authorized to work on a federal contract or operates under the Department of Transportation or the U.S. Department of Health and Human Services status, then federal law will prohibit employees from using medical marijuana.

Even if the company is located in—or has employees in one of the many states that have legalized the use of medical marijuana—the employer should follow applicable federal regulations that prohibit the use of marijuana for any reason. Federally regulated employers who do not enforce federal drug policy risk forfeiting valuable government contracts and incurring costly penalties in the event of an audit.

2. Incorporate state regulations
In the absence of applicable federal mandates, employers that operate in one of the many states allowing medical marijuana should consider specific state requirements while developing their drug testing policies. Medical marijuana laws vary greatly from state to state.

For example, some states limit the use of medical marijuana to people suffering from terminal or critical illnesses, while other states allow use of the drug for a wider array of illnesses. Ultimately, it is the responsibility of the employer to incorporate state law into their drug testing policy.

3.  Work from an angle of safety and personnel issues
Safety-sensitive personnel might operate equipment, machinery, drive a vehicle or handle financial or other sensitive information. Those employers operating in states that allow medical marijuana may consider establishing a drug-free workplace policy prohibiting medical marijuana use for such safety-sensitive personnel. For example, a construction company might prohibit use for a crane operator and allow use for someone who works at a desk.

Employers must carefully determine the proper level of testing for each job description. To reduce the risk of employee lawsuits, employers should articulate legitimate reasons for certain positions being treated differently in their policy.

4. Create and communicate a clear and uniform policy
After evaluating federal, state, and safety factors involving medical marijuana, employers should develop a policy that is clear, uniform, and effectively communicated. For a greater level of protection, consider working with an employment attorney to craft and implement the drug testing policy. The policy should be in writing and distributed to all employees on the date of hire.

Employees and supervisors should also be notified in writing when any changes are made to the policy or its implementation. Train managers and supervisors about what’s included in the policy and how to administer it. Supervisors and managers should take steps to clarify that each employee is being treated consistently. Consistency is essential to help avoiding employee lawsuits.

As new medical marijuana legislation continues to make it into law, it is important that organizations regularly review their drug-free workplace policy to ensure they are complying with current regulations, while also ensuring they are not discriminating against protected workers. Following these four best practices will help you address medical marijuana in your organization, and help maintain a safe and productive workplace.

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The HireRight Blog is provided for informational purposes only. It is not intended to be comprehensive, and is not a substitute for and should not be construed as legal advice. HireRight does not warrant any statements in the HireRight Blog. Any statutes or laws cited herein should be read in their entirety. You should direct to your own experienced legal counsel questions involving your organization’s compliance with or interpretation or application of laws or regulations and any additional legal requirements that may apply.