How should our drug testing program evolve amid shifting marijuana laws?

Welcome to Ask an Adviser, EBN's weekly column in which benefit brokers and advisers answer (anonymous) queries sent in by our readers. Looking for some expert advice? Please submit questions to askanadviser@arizent.com. This week, we asked Tracy Vrchota, vice president of compliance at employment background screening and workforce monitoring service provider Accurate Background, to weigh in on the following: How should our drug testing program respond to evolving marijuana laws?

Terrific and timely question! Marijuana legalization has spread across the U.S., furthering the acceptance of and accessto this substance. As of July 2022, 38 U.S. states have legalized medical marijuana, and 19 states have legalized its use for recreational purposes, with more states poised to follow suit. 

In response, some states have amended their drug testing laws by prohibiting employers from testing current and prospective employees for pot and by prohibiting job denial. California, for example, as recently as this month passed a bill to become the seventh state to restrict the ability of employers to penalize workers who test positive for the presence of cannabis. 

Read more: Weed at work: How HR leaders should handle the legalization of marijuana

This is all happening while marijuana is still a Schedule 1 drug at the federal level, with possession and use being illegal. Yet, as this "green revolution" continues to sweep the nation, and more states are changing their laws, private employers nationwide are being forced to reevaluate their drug testing policies to ensure they can remain compliant with state-specific laws and local ordinances, attract and retain top talent, and still comply with the federal law when applicable. 

The fight for top talent is fiercer than ever. Recruitment and retention are at the top of many companies' agendas, and most cannot afford to be disadvantaged by off-the-job marijuana restrictions. However, under applicable law, employers are still responsible for maintaining safe, drug-free environments for their employees and protecting against legal liability. As a result, rather than testing for the general use of marijuana, many employers are looking to focus on impairment testing when the use of a substance is negatively impacting the employee's work. However, even impairment testing is more difficult for many employers because of the widespread shift to remote work. 

There are four actionable steps that companies can take to respond to evolving marijuana legislation to remain competitive yet compliant: 

1. Determine involvement in safety-sensitive industries. 
   Employers and employees in safety-sensitive industries, including the transportation sector, are subject to specific drug testing requirements under law. Zero-tolerance drug policies can be maintained under such mandates in accordance with applicable federal law. 
   
2. Establish a clear drug testing policy. 
   Employers must develop and disseminate a written policy for employees that outlines the specifics of the testing program, including which positions require testing, when testing will be conducted, penalties (if allowed) for failed tests and accommodations that may be considered.  This would include establishing an impairment testing program if appropriate.
   
3. Educate employees on drug policies. 
   Creating a clear, concise drug testing policy is just one piece of the puzzle. Companies must ensure employees understand the procedures, can identify signs of substance impairment and effectively respond to such circumstances.   
   
4. Effectively respond to changing legislation. 
   Employers must stay ahead of the ever-changing legislation related to marijuana both in terms of testing and impact on current and prospective employees. Corporate legal teams should regularly review policies to ensure they remain compliant by location. 

Read more: Is drug testing for marijuana a thing of the past?

The legal landscape surrounding the use of marijuana and the impact on the workforce is uncertain, but refraining from action is not really an option for employers. While many people may use marijuana responsibly, some companies may grapple with the desire to recruit top talent that may not be able to pass a drug test, while others are forgoing pre-employment testing altogether — a decision that could result in negative consequences. Either way, the "green revolution" is here, and employers must navigate through this complex labyrinth of federal and state laws to keep themselves and their employees safe now and in the future.