To Test or Not to Test: Employee Drug Testing in the Age of Legal Weed

Employers across the country are struggling with the issue of employee drug testing as more states allow the use of recreational or medical marijuana. Although pre-employment as well as random drug tests have always tested for marijuana, more stories of employees who are doing away with tests altogether are showing up in the press for various industries.

Is this the right approach for pest management companies? Can they still establish drug-free workplaces? How can employers ensure that policies do not expose them to allegations of discrimination?

Elimination of employee drug tests is not likely to be widespread in the pest management industry, says J. Scott Hudson, Esq., Stovash, Case & Tingley, P.A. “I do not see this as a trend in the pest management industry, namely because a large percentage of industry employees drive company vehicles, enter customers’ homes or buildings, apply chemicals that in some circumstances could pose safety concerns, and are otherwise engaged in safety sensitive duties,” he says. “As a result, many employers place a priority on the safe performance of job duties.”

Kylie Luff, senior vice president and managing partner of Seay Management, agrees and says that members of her firm have not heard from their clients that elimination of drug tests is a consideration. “Most of the employers to whom we speak are still enforcing their drug-free workplace policies and also completing pre-employment and random drug testing,” she says. “As of right now, based on our research and conversations with local attorneys, courts are still allowing employers to enforce their drug-free workplace policies.”

Although establishing a drug-free workplace policy is still possible, it is important to make sure that company policies are enforced fairly and consistently with all employees—whether the use is medical or recreational marijuana.

“To the extent employment action is based on the violation of company policies and not the medical condition given rise to the use of medical marijuana, most states allow employers to discipline or terminate employees who violate established drug-free workplace programs, and this includes those who test positive for marijuana usage,” says Hudson. “It is important to remember that marijuana is still illegal under federal law and, if an employer is covered by DOT or other federal guidelines, the employer may be required to prohibit marijuana usage.”

When Stuart Aust, a 30-year pest management industry veteran and president and CEO of The Aust Group, owned Bug Doctor, pre-employment drug testing was required for every position in the company—technicians, managers, sales representatives and office staff. “We made it clear that every candidate for a job would be tested and evidence of drug use would be a reason for us not to hire them,” he says.

As the number of states that have de-criminalized or legalized marijuana has grown, the perception of its use has changed as well among potential employees, says Aust. “I interviewed one young man for a sales position and had a number of conversations with him before offering him the job contingent on the drug test and physical,” he says. “He called me after taking the test to tell me that he had smoked at a party the week before and would test positive. I was surprised that he smoked marijuana when he knew he was interviewing for a job and would be asked to take a drug test.”

In Aust’s example, the use was recreational, but the legal use of medical marijuana in states that have approved it does give employers an option to test for substances but still employ people using it medically. For example, an employer can test for the same list of prohibited substances for all job candidates but consider accommodation of marijuana usage for non-safety sensitive employees who provide medical certification.

Legal in 31 states

As of mid-2018, 31 states, including the District of Columbia, have enacted comprehensive legislation covering marijuana usage. The majority of these states limit usage to those with medical conditions, while about one-third of these states allow for recreational use under some circumstances.

Although some laws legalizing marijuana specifically state that they are not intended to require employers to allow marijuana use in the workplace or to affect company policies related to marijuana use, most laws are silent or ambiguous. However, in 2016 Maine was the first state to expressly prohibit an employer from hiring a person solely due to off-duty use of marijuana. The Maine statute, however, does allow employers to prohibit use during work hours or to terminate an employee under the influence at work.

Because laws differ from state to state, it is important to work closely with human resources staff or an employment lawyer to be sure that the company complies with state laws, suggests Aust. As more states legalize marijuana and as more court decisions are published, it is critical to stay up-to-date and rely on experts, he adds.

Companies that span several states—with differing laws regarding marijuana—face more complex challenges. “I recommend that employers have drug-free workplace programs customized for each state,” says Hudson. “As an example, some states have nondiscrimination provisions related to medical marijuana usage, while other states give wide latitude to employers.”

What will be the biggest employee drug-testing challenge for employers in the future?

“The biggest challenge will be balancing the need for a safe workforce against the state disability laws,” says Hudson. “While the Americans with Disabilities Act is a federal law and does not cover medical marijuana as a protected category, many states have enacted similar employment-oriented disability laws that might require employers to provide reasonable accommodation to employees or applicants who use medical marijuana. However, even in the most progressive states, employers are usually not required to permit use on company premises or allow an employee to work under the influence.”

By Sheryl S. Jackson

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