The Future of Marijuana in the Drug Free Workplace

Recent developments in marijuana legislation and legalization has left many companies and individuals alike wondering whether drug free workplaces are required to test for marijuana. As marijuana laws change many people believe that it should not be lumped in with other drugs that are traditionally tested for such as meth, heroin and cocaine. The legalization of marijuana in some states is complicating workplace drug testing.

In 1989, the Federal Drug-Free Workplace Act of 1988 became law. This law required that all federal contractors who receive $100,000 or more, as well as all federal grant recipients, must comply with its requirements. What is often overlooked is that the Act did not require drug testing. Actually, here is a quote from the Department of Labors website’s FAQ about the Drug Free Workplace Act:

Is drug testing required or authorized under these regulations?
The Act and these rules neither require nor authorize drug testing. The legislative history of the Drug-Free Workplace Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act. At the same time, these rules in no way preclude employers from conducting drug testing programs in response to government requirements (e.g., Department of Transportation or Nuclear Regulatory Commission rules) or on their own independent legal authority.

What the Drug Free Workplace Act did require was policies, information, education about the dangers of drugs and resources if you have a drug or substance issue, but not testing.

There are many arguments both for and against testing for marijuana. Some people believe that those who are operating heavy machinery or dangerous machinery such as forklifts should be regularly tested for marijuana usage because it may affect their ability to do their job. However, others believe this is unfair because these same employees are not tested for alcohol abuse and alcohol abuse is equally if not more detrimental to motor skills and response times. Some companies today are fine with medicinal marijuana use as long as the person is not in a position in which it could be a safety hazard.

While as of now there is no actual mandate requiring the testing of employees for marijuana, federal employees are still usually tested for marijuana and it is likely these companies will continue to do so until it is legalized on a federal level. This means that employees that are both directly employed by the federal government and indirectly employed through federal contracts are very likely to be drug tested for marijuana usage.

Employers will grapple with these issues for years to come as both State and Federal laws change.  Take a look at this employer’s point of view in Colorado since his company has federal contracts and he does not want to have any problems meeting his Federal requirements, but realizes it may be harder to find employees who can pass a drug test.

From the drug test perspective, there are few multiple panel tests that don’t include marijuana, but that may be changing.  We have been notified that drug testing manufacturers will be adding multi panel tests without marijuana in the next few months.  So we may have a twelve panel drug test in stock soon that omits a THC test. The question remains, when will workplaces adopt new policies to adapt to the social and legal changes in our country.