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A High Priority

To test or not to test? Pre-employment drug screens used to be an unquestioned norm, a simple fact of life for employers and employees alike. But, thanks to a patchwork of state laws legalizing marijuana for medicinal and recreational use, drug tests have become a more complicated concern.

Completely banned in only a handful of U.S. states, marijuana is legal in eight states for both medicinal and recreational purposes. Most other states fall in between, from allowing it for medical purposes to merely decriminalizing its possession up to a certain amount.

With so many differences in state law, and with it still illegal at the federal level, many organizations have only started grappling with what marijuana legalization means for managing employees.

“What these state laws are doing, at least from my perspective, is they are certainly changing the public’s perception on what is permissible and what’s not,” said Steve Greene, a partner in the law firm of Matthews and Greene with 35 years of experience representing employers on management and compliance issues. “But in terms of actually impacting decisions that employers make, (the law) doesn’t dictate that outcome.”

What the Law Requires

In states with legal medicinal and recreational use, state courts typically have found in favor of employers when it comes to prohibiting after-hours use of marijuana, even for medical reasons. (Because marijuana is illegal on the federal level, it can’t legally be prescribed, but a qualified doctor can recommend its use.) So, employers have had little incentive to change zero-tolerance drug policies, or reassess the need for pre-employment screenings.

However, several 2017 rulings could change the legal landscape. In Massachusetts, for example, the state Supreme Judicial Court sided with an employee whose new employer fired her after her first day on the job when the results of her drug test came back.

The employee had told the hiring supervisor during the interview process of her use of medical marijuana to manage her Crohn’s disease, and made reassurances that she used the drug off-hours, not before or during work.

In a federal case, a Connecticut woman successfully sued under similar circumstances. The federal district court in Connecticut held that federal law prohibiting the use of marijuana does not override the state’s law protecting medical marijuana users from employment discrimination.

Angelo Filippi, a partner in the Fort Lauderdale, Fla., office of Kelley Kronenberg Attorneys at Law, specializes in workplace safety and employment discrimination. Many states that have legalized marijuana, including Florida, have language specifically prohibiting workplace use and possession of medical marijuana, Filippi said. In Massachusetts, lawyers used similar language to successfully argue that offsite use of medical marijuana would potentially require accommodation under the state’s disability laws. This creates the spectre of a wrongful termination claim for failing to accommodate a disability that is treated by medical marijuana.

Filippi advises his clients to consider accommodations for off-site medical marijuana use, when possible. An employee who uses medical marijuana typically will have an impairment considered a disability under state law, he said. A company that enforces a zero-tolerance policy for use of legal marijuana use outside the workplace puts itself at risk of litigation under the theory set forth in the Massachusetts decision.

“There’s going to be a set of sympathetic facts that will be taken up by the plaintiffs’ bar, to try to make case law in this area,” Filippi said. “Employers who don’t want to be that test case need to reassess their policies.”

Privacy considerations about medical conditions also may end up playing a role in the discussion, said Aamir Rehman, a physician and head of U.S. clinical services for global workplace consultancy Mercer. While none of Rehman’s clients has asked for direct consultation about legalized marijuana, several have raised the issue informally.

Rehman said the argument could be made that marijuana’s side effects are no worse than those of an over-the-counter cold medicine or an antidepressant. Yet, employees typically aren’t required to disclose their use of such medications.

It's important to know whether these bans will impede your work, and think about where the profession should stand on this increasingly debated issue.

“In general, when we take medicines, barring some major procedure or treatment, we are not sharing that information with our HR department or our boss,” Rehman said. “If I have to share this with you as my boss because it has an effect on my ability to function — well, a lot of drugs do a lot of things. Who decides what I have to disclose to you? I think that’s where the discussion is.”

Why Screen at All?

Federal contractors and companies that must follow U.S. Department of Transportation rules have little flexibility in accommodating medical marijuana, according to the experts. Zero tolerance is required.

In addition, workplace safety determines whether a company should lift restrictions on marijuana use. Greene, an employment lawyer and member of the WorldatWork Compensation Advisory Council, said common sense about liability will dictate drug policies for many employers, particularly those in safety-sensitive industries.

However, he said, companies could justify reexamining their policies if the tests have become a cost that doesn’t reap many benefits. For example, a company may find that nearly all of its prospective employees pass the tests, or that screening has become a barrier to attracting new talent.

In that case, the employer could decide to base its pre-employment screening on other elements of an employee’s life, such as criminal history, prior employment and credit history, Greene said.

Robyn Cameron, a senior client partner with Korn Ferry Hay Group, said that, given the recent court rulings favoring employees who use medical marijuana, employers should start thinking about the logic behind pre-employment screenings. Some companies have talked about moving away from testing all employees and focusing instead on “impairment testing” if an employee’s actions or work raise questions about marijuana use on the job, Cameron said. This shift may be especially beneficial to companies struggling to find and keep quality employees.

Companies could justify re-examining their policies if the tests have become a cost that doesn't reap many benefits.

Colorado legalized marijuana for both medical and recreational use in 2014. Since then, companies have had to decide whether to maintain their zero-tolerance drug policies, or drop drug screenings altogether. So far, companies with federal contracts and larger corporations with multistate offices have continued their zero-tolerance policies, in the experience of Michele Girard, president of the Rocky Mountain Total Rewards Association and director of total rewards for P2 Energy Solutions in Denver.

Still, some Colorado companies — particularly those concerned about attracting top talent in creative industries — have opted out of drug testing. The state’s low unemployment rate has put pressure on employers to eliminate testing for marijuana, even if they continue pre-employment screenings for other controlled substances, like opioids or cocaine, said Curtis Graves, staff attorney for Employers Council in Denver.

Employers Council, which provides legal and HR consultation for more than 4,000 members nationwide, surveyed its Colorado membership about drug testing in 2014 and again in 2016. Statewide, about 77% of respondents used drug screenings in 2014, whether during the pre-employment stage or at some other point during the employment relationship. In 2016, that percentage dropped to 62% of respondents.

The change was markedly significant in the Denver/Boulder area, which went from 75% of respondents testing employees in 2014 to 57% two years later.

“The employers are finding that they can’t really take a hard line on off-duty usage unless they are willing to let positions go unfilled,” Graves said. “The labor market is already tight enough that they don’t need to make it any worse.”

What’s Next

Much like real estate, the most important factor in developing marijuana-use policies could come down to a key factor: location, location, location.

Employers operating in only one state will have an easier time crafting new drug-use policies than multistate employers who must consider the nuances of varying state laws, said Dale Deitchler, a shareholder with Littler Mendelson in Minneapolis. Some states, like Arizona, specifically prohibit an employer from taking action against an employee based on a positive test for marijuana, Deitchler said. Others, like California, have ruled that an employer can choose not to hire an applicant based on a positive test for marijuana during pre-employment screening.

“If you want a nationwide policy that is very surgical and addresses every situation, you’re just not going to be able to get there,” said Deitchler, who has written extensively on the topic. “As long as (marijuana) remains federally illegal while we’ve got the vast majority of states that have enacted these laws, it’s going to be an exercise in navigating land mines.”

Deitchler has worked with clients to establish “acknowledgement forms,” in which an employee authenticates a medical use for marijuana but agrees not to come to work impaired by marijuana use, or to possess or use marijuana at the job site.

Companies without pre-employment testing should establish a clear code of conduct prohibiting employees from being under the influence of marijuana on the job, said James Clark, head of global compensation for a midsized, high-tech company and a member of WorldatWork’s Compensation Advisory Council. This shifts a zero-tolerance drug policy to focus on an employee’s time in the workplace.

“Coming to work high is no different than coming to work under the influence of alcohol or narcotic prescription drugs,” Clark said. “I think the biggest challenge will be to educate current and prospective employees of one’s company policy on the use of drugs and to be consistent in applying that policy.”

Even if an employer decides to nix pre-employment screening, the company would reserve its right to test an employee who is suspected of coming to work under the influence of marijuana, said Greene, the employment lawyer.

However, today’s marijuana tests are still not sophisticated enough to determine impairment — only recent use. So, a good HR department will continue to play a key role in monitoring employees on the job in a post-testing world.

“If an HR department is well-trained, then they should be well-versed in documenting employee performance and behavior,” said Graves, of the Employers Council. “If somebody is not doing their job adequately, you don’t have to go down the route of drug testing, you can write them up or terminate them based upon their performance only. At the end of the day, the general principles of human resources will always apply.”