Now that Illinois has joined the growing list of States that have legalized medical or recreational marijuana use it is now time to acknowledge some of the substantial challenges employers in these states must now address. New York is the most recent city to prohibit pre-employment drug testing for marijuana, and for many years we have seen employers discontinuing pre-employment drug testing.  For companies supporting Federal Contracts or involving the Department of Transportation the employer responsibilities remain the same for drug testing. Keep in mind that none of the latest legislation related to the legalization of marijuana allows for the consumption during work hours or to be impaired at work even with a medical marijuana card. But what if your business doesn’t fall into a neat, defined box, or operates in a State with legal recreational use as well as one that prohibits the use?  How do you come up with a uniform policy?

As an employer, it is essential to know the laws in your specific state and to implement a drug testing policy in line with your organizations policy. For example, there are commercially available drug testing solutions that can identify if a person has consumed in the last 24 hours (saliva), in the last 30 days (urine) or the last 90 days (hair).  Environments with a higher degree of risk (i.e. operating machinery, responsible for public safety) will continue to impose pre-employment drug testing, post injury drug testing and testing for suspicion. In Canada, the government has established the following guidelines for military and those involved with law enforcement and public safety:

• Cannot consume within 8 hours of being on duty for military personnel
• If you are a firefighter, or handle weapons, you cannot consume within 24 hours of your scheduled shift
• For positions deemed “safety sensitive”, an individual cannot consume for 28 days prior

Worker’s Compensation benefits and Americans with Disabilities Act (ADA) are two areas which will likely be settled through litigation. Currently if an employee is injured on the job, the individual is subject to a post injury drug screen.  However, most tests will only confirm if a person has consumed in the last 30 days, but not necessarily under the influence at the time of the injury.

Will this result denial of claims?  Very likely!  The law does not protect any individual who is under the influence of marijuana at work as safety is the first priority. Similarly, with ADA and the protection of an individual’s personal health information (i.e. HIPPA) this becomes a squishy target on how to accommodate the needs of the individual and the role that medical marijuana plays.

Because federal law and state laws are at odds, the resolution is not through regulatory changes, but rather legislatively….which means litigation!  As an employer in States where marijuana has been legalized, it is essential to work closely with your human resources department and labor law attorney to craft a policy in line with the rights of the individual.