This article from Fisher Phillips discusses 8 questions to consider as you might revamp your policies in regard to cannabis testing. We have presented a summary of the article below. We encourage you to read the article in its entirety.
How will these changes affect your workplace? Here are eight questions to consider when you revamp your policies for cannabis.
Cannabis remains a Schedule I drug under the Controlled Substances Act. Its use remains unlawful for federal purposes. [R&A Comment – Remember that federal law includes drug test requirements of the Department of Transportation (DOT). If DOT laws apply, they supersede any state laws.]
While tests can detect if someone has consumed cannabis, they remain inaccurate in measuring real-time intoxication. Determining on-the-job impairment through a drug test remains difficult. [R&A Comment – Remember that a negative drug test does not necessarily equal no impairment, a positive drug test does not necessarily equal impairment, but a positive drug test does equal under the influence]
A variety of factors will shape your drug-testing policies, including your industry, location, job types, and workplace culture. Here are eight key questions you should consider when developing your policies in light of evolving cannabis laws:
- Will you continue pre-employment drug screening? Employers may opt to drop cannabis from the drug-screening panel. However, federal law may still require that cannabis be included on any drug screening. [R&A Comment – We suggest a reason to keep cannabis in your panels here.]
- Will you create a different policy for safety-sensitive positions? [R&A Comment – we make case for keeping cannabis in drug tests for safety sensitive positions here] Be sure to be consistent and comply with state law.
- How will you handle cases of reasonable suspicion. Consider developing clear guidelines on how to detect cannabis impairment and what to do when an employee is suspected of working under the influence. [R&A Comment – we provide some guidance here ]
- What will the consequences be for violating company policy on cannabis use and other policies pertaining to having cannabis and cannabis derived products or paraphernalia in the workplace? [R&A Comment – Will you have a zero tolerance policy or will you provide an employee assistance program?]
- How will you train managers on observing and reporting possible on-the-job use of cannabis? [We have a pertinent post about training managers here]
- Will you have an internal process for employees to dispute the results of an investigation or drug test?
- Do you want to create a single policy that is compliant with all states where you operate, or separate policies based on specific state and local rules?
- Have you consulted legal counsel to review your policies or advise on terminations following a positive drug test? [R&A Comment – This is most important advice]
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. Mr. Randisi can be contacted by phone at 410.494.0232 or Email: firstname.lastname@example.org or the website at randisiandassociates.com