Free Enterprise - The FindLaw Small Business Law Blog

Is It Time for Your Biz to Rethink Its Drug Testing Policy?

It makes sense. You run a business and you want your employees to show up, work hard, represent the company well, and stay safe. And that's why many business owners have drug testing policies in place. After all, drug use can be accompanied by absenteeism, reduced productivity, and accidents. But laws and perspectives are changing, causing some employers to rethink their drug testing policies. Here are some factors to consider before you do.

Federal Jobs, Safety, and Unions

If you're questioning whether to relax your drug testing policy and your business is federally regulated or involves higher-risk work, the answer is likely 'no.' Many federally-regulated jobs require testing for drugs that are illegal at the federal level, including marijuana. And for jobs that entail certain safety risks, drug testing may be important for worker safety and employer liability. On the other hand, if your employees are in a union, you may not be able to implement a drug testing policy if it wasn't negotiated and included in the union contract.

Changing Marijuana Laws

Weed presents a particularly complex issue with regard to a business's drug testing policy. State laws regarding medicinal and recreational use are constantly changing, with more and more localities relaxing their laws and pot-related penalties. While most states still allow employers to fire or refuse to hire someone who tests positive for pot, some courts and state laws are siding with employees, especially if they have legitimate medical marijuana cards.

Some employers are choosing to have a very weed-friendly workplace, or to offer treatment options for drugs in general, instead of testing. However, it's important to note that weed is still illegal under federal law, and the Trump administration has indicated it may take marijuana-related crimes more seriously than the previous administrations.

Testing After a Workplace Accident

With regard to workplace accidents, there are at least a few factors to consider. Typically, it's still ok to test for drugs after an accident, and some workers' compensation insurance policies require it in order to avoid higher premiums. However, it's not always legal. Take certain precautions like having written, signed policies in place ahead of time, if you do choose to test.

Workplace drug testing is a bit of a legal minefield. State laws vary a lot and are constantly changing, so it's important to speak with a local, experienced employment law attorney before relaxing or strengthening your drug testing policy.

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