Cookie, anyone? Usually, this question may elicit a positive response, but what if the cookie in question is a ‘pot edible’, infused with marijuana? Then, the response would depend on personal choice, as well as the person’s health condition and their location because some states have legalized the use of Cannabis for medical or recreational purposes. Even states which sanction such use are keen to set restrictions on the packaging, labeling and potency of such items. Also, even though sanctioned by individual states, the practice is still an offence under federal law.
Colorado, Washington and the District of Columbia permit the use of recreational marijuana with Alaska and Oregon set to follow suit in 2016; while 23 allow its medical use. The question that is paramount on the minds of employers in such states is this: can I still conduct drug tests on job applicants, and deny a job over a positive result, especially when the use of drugs is legally sanctioned? Several months ago, we asked this question. We are now beginning to see how this issue is playing out.
The number of positive tests stands at over 20% in the states which sanction drug use, and 3.7% in states which do not sanction such use. So, are the employers relaxing their drug testing policies in the states which sanction them? Not really!
Even states which allow the recreational use of marijuana do not sanction it at workplaces. Most people believe that the approval for even medical marijuana is only useful to protect a person from prosecution but offers no further guarantees. State and municipal government agencies are some of the strictest ‘zero-tolerance of drug use’ employers when it comes to drug tests. They expect an applicant to truthfully declare any use of drugs for as long as 12 to 36 months prior to their job application and an affirmative response usually results in disqualification.
In states that have legalized marijuana for any purpose, what is causing the disparity in policy between business and society at large?
The bottom line is, businesses and government agencies have elected to err on the side of caution. Whoever thought an employer’s efforts to recruit talent could be fraught with such pitfalls?
Relaxing one’s zero-tolerance policies could results in some risks for employers, who have every right to impose strict drug policies at their workplaces. They need to ensure that they are not held liable for compromising the safety of their workplaces before making any drastic changes to their policies. They may also seek to insure themselves from any possible negative consequences of such relaxation in policies. Additional complications are surfacing:
Some argue that marijuana helps treat glaucoma, Crohn’s disease, multiple sclerosis, nerve pain and effects of chemotherapy, among other ailments, enabling thousands of workers to lead productive careers not hindered by the symptoms of their diseases. Others caution against major policy changes because the risks of liability for failing to ensure workplace safety are too high for any employer. It is also interesting to note that 45% of staffing firms say drug tests are usually part of every contract for contingent staffing and admit that such testing is important as it turns up issues which could be otherwise missed. Through this blog, we’ll keep you posted on the inevitable legal challenges that will result as companies struggle to understand how to accommodate this legal and cultural change.
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