Will the Bernie Sanders Pot Bill Make Drug Testing Go Up in Smoke?

Marijuana Photo

Senator Bernie Sanders of Vermont recently introduced a bill that might hasten the legalization of recreational marijuana. It could also cause employers some concern about the continued efficacy of their drug testing policies and raise other, less critical questions. For example, will they decide to add more vending machines or restock the Funyuns and other munchies more frequently?

The bill introduced by Sanders, who is seeking the Democratic nomination for president, would remove marijuana from Schedule I of the federal Controlled Substances Act. This change would, among other things, let states decide if they want to make pot use legal without worrying about violating federal law.

Judging by the number of states that have already legalized recreational use of marijuana (four, plus the District of Columbia) and the number of states with upcoming bills or ballot measures looking to do the same (over 10 and counting), the trend toward pot legalization has been gaining momentum.

So, what kind of impact might this have on employers, especially in connection with workplace drug-testing policies?

For employers in safety-sensitive or federally-regulated workplaces, it is reasonable to assume that legalization of marijuana would have little impact on existing drug-testing requirements. Private employers in general industry, however, might have to navigate murkier waters.

Right now, with marijuana use illegal at the federal level, private employers generally have been able to continue with drug-testing policies that call for the termination of employees who test positive for marijuana use. In fact, even in states that have legalized recreational marijuana use, there are cases of employers successfully terminating employees for medical marijuana use. For example:

  • The Colorado Supreme Court ruled that employers' zero-tolerance drug policies trump the state’s medical marijuana laws. Affirming lower court rulings, the high court ruled that employers can fire employees who test positive for marijuana use, even if such use is off-duty (Coats v. Dish Network, Colo., No. 13SC394, 6/15/15).
  • Under the Washington state law on recreational marijuana, employers aren’t barred from conducting workplace drug testing. Moreover, the state supreme court has ruled that medical marijuana provisions don’t prohibit employers from discharging employees for medical marijuana use (Roe v. Teletech Customer Care Management LLC, Wash., No. 83768-6, 6/9/11).
  • Oregon’s Supreme Court ruled that the use of medical marijuana doesn’t qualify employees for reasonable accommodations under state disability discrimination provisions, because medical marijuana use is considered to be "illegal use of drugs" (Emerald Steel Fabricators v. Bureau of Labor & Indus., Or., No. S056265, 4/14/10).

If the federal law is loosened up with respect to marijuana, employers’ drug testing policies might be subject to more court challenges, especially if employees can be fired for off-duty pot use. Employers with drug-testing policies that include marijuana testing might want to consult with legal counsel familiar with applicable federal, state and local laws.

In the meantime, employers with drug-testing policies do not have to trash them. Keep in mind that employee substance abuse can lead to higher absenteeism, increased accidents and injuries, higher medical costs and lower productivity and quality.

In fact, this might be the perfect time to remind employees about workplace policies on both drugs and alcohol.

Drug and alcohol policies should address the following elements:

  • the goals and purpose of testing;
  • the types of testing conducted, such as random, reasonable suspicion and post-accident;
  • the testing procedures that will be used;
  • the steps that will be taken to verify test results and enable employees to explain or challenge results;
  • the provisions that will be made to protect the confidentiality of test results; and
  • the disciplinary measures that will be taken against employees who test positive.

As for the vending machines, keeping a plentiful supply of chips, cookies and other snacks is never really a bad idea, is it?

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