Employment Background Check Blog
drug policy review

Many employers have been nearly overwhelmed by the sheer volume of changes they’ve seen in recent years with regards to the laws surrounding drug use in the United States.

As more states pass new statutes decriminalizing medical marijuana (and, in the cases of Washington and Colorado, recreational marijuana), employers trying to understand what actions they need to take to respond to this changing environment.

Many organizations are taking a close look at their internal workplace drug policies, reviewing them to see if they merit an update. After addressing some fundamental issues , employers can then tackle more complicated issues:

  1. Engage your employment counsel at the outset.
    Attorneys well-versed in labor and employment law can help guide your organization in better understanding what, if any, changes you may need to make to your current workplace drug policies to better ensure that they are compliant with all federal, state, and local regulations.
    Counsel can also help you determine a drug testing policy and associated procedures that provide you with the optimal balance of risk mitigation, budget considerations, and legal requirements.
  2. Work with your medical review officer (MRO) provider to better understand their processes.
    If your current drug testing process includes MRO services, it would be beneficial to gain deeper insight into your provider’s internal policies and procedures, as these may impact your review.
    For example, many MROs, because they follow strict guidelines of the U.S. Department of Transportation (DOT), do not currently recognize medical marijuana as a legitimate exemption and would therefore still return a sample as positive.

    The employer itself would then have to adjudicate the situation and make an employment decision based on the evidence provided by the applicant or employee. If your MRO does recognize medical marijuana exemptions, it would be helpful to have definitive clarity around how they handle this process.

  3. Know that the best policies are characterized by the four Cs: clear, consistent, concise, and broadly communicated.
    For your workplace drug policy to be effective, it is important to remember that all your employees must understand it and its implications.Otherwise, you may place yourself in possibly negative situations—like losing a high-value employee who thought he or she had the right to partake in medical marijuana believing that it was legal in the state.

    So, when crafting a new policy or making changes to your current policy, focus on clarity, uniformity, and brevity (if possible), and have a plan in place as to how you will communicate the new or updated policy to your employees. Being prepared for questions or feedback would also be a prudent measure.

  4. Establish a methodology for ongoing reviews, updates, and changes to your policy.
    Given the sheer volume of changes to the regulatory landscape just in the last few years, there is a strong likelihood that this landscape will continue to evolve in the near future.By establishing a process by which your organization can stay abreast of and respond to these changes, you will be in a stronger position of not having to make rushed amendments when the situation demands them. Outside expertise may prove invaluable to have on deck: employment attorneys and drug screening providers can provide insightful guidance and help you better manage change as it arises.
Free Report: Addressing Drug Use’s Changing Social and Legal Environment in Your Workplace Policies
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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.

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