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Should Your Company Change Its Drug Testing Policy?

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By Robyn Hagan Cain on March 08, 2013 9:28 AM

Corporate drug testing is a billion-dollar business; many major companies require prospective employees to pass a drug test as a condition of employment.

In some industries, it’s a safety concern. You don’t want your delivery driver, air traffic controller, or surgeon to be stoned at work. In other industries, where employees clack away on keyboards all day long, drug testing seems pointless. Particularly in light of changing attitudes towards drugs like marijuana.

Times have changed, even if federal law still says that marijuana is illegal. Medical marijuana is now legal in 19 states and the District of Columbia. Recreational marijuana is legal in Washington and Colorado.

But employment practices don’t have to keep up with those changes.

In 1989, the Supreme Court held in National Treasury Employees Union v. Von Raab that the Constitution doesn't bar employee drug testing. Just last year, the Sixth Circuit ruled that a state law legalizing medical marijuana doesn't protect patients from disciplinary action in a private employment setting for using the drug.

In most states, a company can make its own rules regarding a drug-free work place.The states of Arizona, Connecticut, Rhode Island and Maine are the exceptions, according to Inside Counsel; they have laws that require employers to accommodate medical marijuana.

And what about the recreational marijuana states?

If your company has operations in Colorado or Washington, consider revisiting your drug policy to ensure that you're in compliance with the latest drug laws. For example, Colorado employers cannot terminate employees for lawful conduct they engage in outside of the workplace during nonworking hours, Inside Counsel reports. Under that law, an employer couldn't fire an employee for having marijuana in his system if the employee consumed the drug during non-work hours.

No matter where your company is located, make sure that supervisors are properly trained to look for signs of impairment before demanding a drug test. Dr. Barry Sample, director of science and technology for the Employer Solutions business of Quest Diagnostics, told The New York Times that supervisors, "need to understand what constitutes reasonable suspicion, and make sure the policy is communicated clearly and very well to the employees who are going to be impacted."

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