The legality behind firing someone for testing positive for marijuana has been called into question recently because, Colorado and Washington both passed state laws declaring recreational pot legal.
Now that marijuana use is legal in these two states, companies are being faced with a new challenge. If an employee tests positive for marijuana at a zero-tolerance company in one of these two states, is it still lawful to terminate them? The Supreme Court recently ruled that it is, but maybe there could be amendments made by the employers in an attempt to compromise.
Fit the policy to the job
The basic, standard five-panel drug test used by most employers screens for marijuana, cocaine, phencyclidine (PCP), amphetamines and opiates. This panel looks for meth, speed, heroin, crack cocaine, ecstasy and angel dust, to name a few by their street names. One reason companies opt for the zero-tolerance policy is to avoid legal issues. If they adopt an all or nothing policy, legally speaking, it is clear-cut and not open for debate. However, thanks to the legalization of recreational marijuana in Colorado and Washington, the one-size-fits-all policy would appear to no longer stand. So, what to do from here?
No one would dispute that a significant reason these drug and alcohol policies exist is to protect the safety of other employees and clients in the workplace. How dangerous is the task at hand? Who and how many people would be affected if any accident occurred? Those operating heavy machinery are cautioned not even to take cold medicine if it makes them drowsy! It is no accident semi-truck drivers and airplane pilots are screened consistently; their jobs put them in positions where if anything goes wrong, it could cost some people their lives.
Zero-tolerance policies exist in these types of jobs for that reason. Come to work under the influence, people could die. So then what? What about all those people who take buses and trains to work and sit passively at desks or computer consoles during the day? Well, the truth is, alternatives to automatic termination are already in place. Many companies employ a warning system, which could lead to an eventual termination if an employee’s behaviors are not modified satisfactorily. Others choose to remove and suspend an employee from duty immediately pending a follow-up drug test and probationary period. Some use a variation of the two methods, depending on the infraction.
Hold out for alternative testing options
Maybe the real question should be “How do we incorporate legal recreational marijuana into our existing policies?” Any behavior that affects job performance usually leads to termination if it happens frequently enough. Drug use is not the only culprit. Alcohol and excessive illness or tardiness are also reasons. Scientists are developing a test similar to a Breathalyzer for detecting marijuana in real time. The main issue with testing for marijuana is it metabolizes significantly more slowly than alcohol, so if a person used the drug at any point in the past 30 days, the test could come back positive. That is even if the individual never came to work under the influence. If and when this test becomes available, it will be easier to separate actual recreational use of the drug from a more abusive use.
Forego random drug testing altogether
Human Resources departments recommend that one way to avoid legal troubles is to forgo random drug testing once an individual is hired by a company. Routine screenings for those working in high-risk environments are usually accepted, and they are also built into company policy. It would be in everyone’s better interest to only order a drug test if there is reason to believe an employee’s sobriety is compromised while at work.
If recreational marijuana is legal off the clock and it is not affecting performance on the clock, then maybe we should do as the folks from Amsterdam do. Get rid of the marijuana element of the drug test in states where it is legal, but keep a stricter policy for those substances that are still 100 percent illegal.
About the author: Rebecca Short is the human resources director for her company and has to deal with setting policies on drug use and screening applicants. To help her with screening these applicants, she requires a reliable lab, and has found such a lab by going to http://www.workfloworlando.com. You can learn more about Rebecca by going to Google+.
Image: A7nubis; "Marijuana plantation"; GFDL, CC BY-SA 3.0