Marijuana in the workplace is a hot topic. Despite still being illegal federally, the trend of legalization of recreational marijuana is growing.

As of January of 2019, 33 states across the USA have some sort of decriminalization of pot, whether it’s medically or recreational.

As a business owner with a lot on the line, what things should be considered in regard to your employees, marijuana and your company?

Go through these 9 questions to get a better understanding of what your next steps should be.

Is your business in a state that has legal recreational marijuana?

You’ve invested a lot of time, resources and money into your business. Do you want your employees coming in to work high on pot? Just as alcohol is legal, you don’t want your employees to come into work impaired. It’s a liability.

Even though you might say, “what they do at home is their business,” you should know there are no marijuana drug tests that can prove current impairment. And, impairment has been demonstrated to last long after the high is gone.

Be sure to work with a professional drug testing partner like InOut Labs to know what can and can’t be done when it comes to drug testing employees and marijuana.

Another option is to continue testing for other illegal drugs besides marijuana.

Do you do business in states that have medical marijuana laws?

In time, there will be some sort of law in most US states regarding medical marijuana. Just because an employee of yours has a medical marijuana card, does it mean that he can get high at your place of business?

It’s absolutely crucial that you and the leaders of your company decide what rules and policies you will invoke in regards to medical marijuana.

There are a number ways of ingesting medical marijuana that does not cause a “high” feeling. Can these folks work in your factory? Do you want them talking to customers?

These sorts of questions need to be answered ASAP as medical marijuana is here to stay and more and more people are using it. Get expert advice on the medical marijuana laws in your state so you can make informed decisions.

Will you employ people who are medical marijuana cardholders? What about current employees who have a medical marijuana card?

This question needs careful consideration. Depending on which state(s) you do business in, there could be some very specific laws with regard to employees’ rights when it comes to medically prescribed marijuana.

It might be determined that the only way a person can work is when they use marijuana medically and therefore they would fall within the guidelines of the  Americans with Disabilities Act.

This is why policies must be reviewed and decisions made based on which State law you business is in.

Do you have a company policy that states you will test employees for marijuana?

Now is the time to have a long, frank conversation with the leaders in your company. It’s time to decide the right course of action to take with regard to a drug testing policy. Will it include marijuana?

If it does include marijuana, what consequences will be applied if the employee tests positive? What if they are a medical marijuana card holder and you are in a state where it’s legal?

It is very important to discuss your policies with your attorney about the state law and provisions that will keep your company out of trouble.

Do you do business in a state where there are limitations on holding employees or candidates accountable for positive marijuana drug tests?

Depending on what the laws are in your state, you might find yourself prohibited from firing an employee who tested positive for marijuana if the state has a medical marijuana law.

And what if the state law says you cannot discriminate when it comes to making hiring decisions when an employee or new hire fails a drug test for marijuana, and that employee, whom you know to be a marijuana user, harms another employee in a workplace accident?

It’s important to know what the law is and also to pay attention to court rulings.

Does your business receive a discount on workers compensation due to participating in a State Drug-Free Workplace program?

In the 1990s, some states started drug-free workplace programs where companies could receive discounts on their workers’ compensation insurance premiums if companies would uphold and have clear policies on being a drug-free workplace.

There are approximately 13 states across the nation that have statewide drug-free workplace programs.

This is another reason where it’s imperative to talk to legal counsel in your state to draft up clear policies on drug testing so you can a) protect your company and b) continue to stay in the Drug-Free program.

Are you regulated by the United States Department of Transportation (DOT) and therefore required to test employees for marijuana?

If the employee is required by the United States Department of Transportation to participate in drug testing programs, they have no say in whether they are tested for marijuana. DOT guidelines are strict with no flexibility.  

This includes bus drivers, truck drivers, airline pilots, subway workers and safety-sensitive workers in other modes of public transportation.

Do you work on contracts (federal or state) that require you to implement a drug-free workplace?

An often overlooked law which states that federal contractors must agree that they will provide a drug-free workplace as a condition to receiving the federal or state contract can lead to loss of a contract.

Employers with these types of contracts or grants must honor these conditions in order to retain the contract.

This means administering (at a minimum) a five panel drug test which includes Marijuana, Cocaine metabolites, PCP, Opioids for all staff.

How do you know if an employee has used marijuana in the workplace? And does it matter to you if they smoke pot on their own time?

Would you feel safe if you were flying cross country with a pilot that smoked a joint before he came into work? How about a surgeon who is a heavy pot smoker on the weekends? Do you feel comfortable going under the knife with him behind the scalpel?
The same applies to employees that work for you. Perhaps there are staff that don’t feel safe working with someone who just smoked before coming to work.

What message is the leadership setting when it comes to marijuana use and your company? It’s about implementing policies.

Be sure to speak to a employment attorney when deciding on whether you’ll have a policy that doesn’t prohibit the use of a controlled substance.

So, how do we know if an employee used marijuana before work or not?

Well, really we can’t. Currently, there are no drug testing methods that show how recently they smoked. If they test positive for marijuana, this could mean they smoked a few hours ago or even 30 days ago.

Marijuana in the workplace is a topic that is not going away any time soon. Especially with more and more states legalizing it.

Regardless of whether it’s legal or not, it doesn’t change the effects it can have on health, family relationships and safety in the workplace.

Employers, it’s time to make decisions about marijuana in the workplace. If you need help, contact InOut Labs at 847-657-7900 or