In House - The FindLaw Corporate Counsel Blog

Why Your Company's Drug Testing Policy Is Due for an Update

Medical marijuana may be legal in your state, or it soon may be, but that is not the story.

Everybody knows it is still a controlled substance under federal law, so party-goers beware even in recreational-use states. But that is not the story either.

The real story, particularly for corporate counsel, is that companies need to update their drug policies on marijuana use. That's because weed use is growing like, well, that's another story.

Testing the Limits

Drug testing is a given for some companies, particularly those that serve military, police, and security industries. Transportation, airline, and heavy-equipment businesses have low tolerance for pot-users, too.

But many companies, often small shops, do not test workers for marijuana. That's because marijuana laws are confusing, testing is cost-prohibitive, or employers would rather take pot smokers -- even ex-convicts -- than leave them unemployed.

In any case, employers need clear policies on marijuana use because at least 29 states have made it legal in some form or another. Here are some policy suggestions:

  • Don't use marijuana at work
  • Don't bring marijuana to work
  • Don't work under the influence of marijuana

There are caveats, however, especially with medical marijuana users. Employers cannot discriminate against them. Some courts have ordered companies to reinstate workers who were fired after testing positive for marijuana use.

Employment Agreements

While testing is not for everybody, even the smallest business can guard against pot use at work with employment agreements. In addition to having a written policy, employers can craft a specific acknowledgment form.

For example, employees should acknowledge that:

  • Marijuana use is illegal under federal law
  • Illegal marijuana use is a terminable offense
  • They are liable for injuries and damages from illegal marijuana use

That ought to put a lid on the lunch-time party, at least for the recreational users.

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