Q. Do I have to allow medical or recreational use of marijuana since it is legal in my state?
A. The short answer is no. So far. Up to this point, every time an employee has challenged a company’s drug policy, the company has prevailed. The operational word, though, is “policy.” If your company has a well-written drug policy that specifically addresses marijuana, and expressly prohibits its use, including testing positive in a company drug test, then the issue becomes one of a policy violation. Of course you’ll need to consult a competent HR attorney to get the language right. Keep in mind that marijuana is still illegal under federal law.
Q. How do we handle the use or misuse of prescription drugs?
A. The number of people using and abusing prescription pain medications has grown to truly scary levels in recent years, and many unwary employers are paying a price for it. Even a legitimately prescribed medication can cause behavior changes that compromise safety in the workplace, affect productivity, and increase absenteeism. A drug test will detect both prescribed and non-prescribed medications (if they are in the test panel), and the MRO process will sort out the legit from the illegit. If an employee is in a safety-sensitive role, even a prescribed medication is a threat.
The National Safety Council urges employers to educate employees about the risks of using opioid pain medications while also taking steps to avoid potential liability in workers’ compensation and personal injury litigation. .
Q. How do we deal with things like a refusal to test, specimen temperature out of range, or diluted specimen? And what do these mean?
A. Drug users lie. And cheat. If they are required to take a drug test, many will do whatever they can to pass the test — except quit using drugs. Make sure your policy addresses the following situations:
Refusal to test: If a donor goes for a drug test and starts the process, but does not provide a specimen, that is a refusal to test. The U.S. Department of Transportation allows 3 hours and up to 40 ounces of water for a “shy bladder” situation. If a specimen is not produced, it’s assumed to be intentional and treated the same as a positive.
Temperature out of range: If a donor provides a urine specimen that is either too cold or too hot, what do you do? It was clearly substituted. We recommend a retest though.
Diluted specimen: This is a lab determination based on the chemical properties of the specimen. Drug users will often drink lots of water to dilute urine and disguise drug use. We recommend you retest.
Make sure all of these are addressed in your written drug policy.
Q. What if someone fails a drug test?
A. When an employee fails a pre-employment drug test, most companies rescind the job offer. If an existing employee fails, what do you do then? Some companies have a zero tolerance policy. But what if it’s a good employee you want to keep or help? Your written policy should address all of these and provide the employer with some discretion. Some include a Second Chance which provides a path back to work that may include counseling and random drug tests. The main thing is to have these things planned out ahead of time.
This is as good a time as any to review your written drug policy.