The Legalization of Marijuana and Workplace Drug Testing

The Legalization of Marijuana and Workplace Drug Testing

Change: it's inevitable. In less than a decade, we have seen marijuana laws drastically change all across the United States. Medical Marijuana is now legal in 29 states and Washington, D.C., and approximately one in five Americans now live in a state where it is legal to smoke weed recreationally. A once illegal substance is slowly becoming legalized and businesses are struggling to navigate these uncharted waters.

Argument: "I have a medical marijuana card. I should be permitted to smoke, regardless of my employers stipulations."

As the Drug Enforcement Administration classifies marijuana as a Schedule I drug under the Controlled Substances Act (currently placed in the same class as LSD and heroin), physicians cannot legally prescribe marijuana, they can only "recommend" its use. The official federal policy is that marijuana has no accepted medical use and has a high potential for abuse. A company must then decide if they want to risk a federal interruption in their business. Many companies have opted to test for "controlled substances" as a way to comply with federal regulatory guidelines.

Argument: "But I live in a state where smoking weed is legal for recreational use. My employer cannot tell me what I can and cannot do in my free time if I am abiding by the law."

That is absolutely correct. Very few states have deemed marijuana legal for recreational use. However, before you sue your employer for violation of your civil rights, you should know it is still illegal on the federal level.

Banks do not offer services to marijuana dispensaries for this very reason. The federal government regulates the banking industry, so banks are unwilling to chance dealing with marijuana businesses to avoid being shut down as an illegal operation supporting drugs. The Department of Justice issued guidelines in 2014 on how banks could legally provide financial services to state-licensed marijuana businesses, but many remain reluctant to cross that bridge. So, if you cannot get the banks in on board, there is not much hope that progress will be swift.

Companies that depend on government subsidies and favors continue to use drug testing as a screening tool for prospective candidates. They do not want to jeopardize their livelihood, so they toe the line. Some businesses, depending on their model, have opted to forego testing for drugs unless there is an issue such as drunk driving or public intoxication or showing up to work inebriated. An obvious problem allows for a deeper investigation into a person's behavior, and if it is detrimental to the company's business, they'll face termination of employment.

Each business has to decide what, if any, impact may arise from an employee's use of marijuana on the job. The small business that supplies paraphernalia for smoking may not care that their employee gets high on their free time, while the major corporation with an employee in a critical function may deem an employee worthy only if they can show themselves free of contaminants.

Bottom Line: Until marijuana is no longer considered a Schedule I drug, surely no bank or medical professional will risk losing their fortune on matters dealing with marijuana. However, given that this drug is slowly becoming legally permitted for recreational AND medical use, whether or not you choose to drug test your employees for marijuana is completely up to your discretion.