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High Maintenance: Recruiting and Retention in Midst of Marijuana Legalization

June 23, 2022

Quest Diagnostics, one of the nation’s leading providers of employment-related drug testing, recently reported that positive drug test results for employees were up 30% in 2021. Most attribute this increase to the loosening restrictions on medical and recreational marijuana use across the country.  Many states have legalized marijuana for medical purposes and a growing number are also decriminalizing recreational use. Indeed, there is legislation pending in Congress that would remove marijuana from the list of substances regulated by the federal Controlled Substances Act.

With the growing acceptance and wider use of marijuana and the current intense competition for employers to recruit and retain employees, many employers are wondering if they still can or should test for marijuana use among applicants and current employees. While laws differ from state to state and this is an area of rapid development, W+L can provide the following quick guidance to employers in Ohio, Kentucky, and Indiana:

Yes, employers can require applicants or employees to undergo drug testing to detect the presence of marijuana and can refuse to hire or terminate based upon a positive result.  This can be done as a condition of hiring, randomly during the employee’s employment, when there is reasonable suspicion to suspect impairment, or following an injury, accident, or near-miss incident.  

Employers do not have to “accommodate” an employee’s use of marijuana for purposes of treating a physical or psychological impairment. This is true even if the employee possesses a legal and valid medical marijuana card for that condition under Ohio law.

Whatever rules an employer decides to set concerning drug use and testing, those rules should be set forth in a well-written policy or handbook that is distributed to employees.

Employers can choose not to test for marijuana, but they should be deliberate and cautious in making that decision.  First, many state workers’ compensation programs and federal contracts require or incentivize employers to drug test employees.  Second, liability concerns may dictate that drug testing be conducted.  This is particularly true in any position that is “safety-sensitive,” a description that covers a broad range of machine operators, construction workers, forklift and heavy equipment operators, security guards, truck drivers, physicians, nurses, etc.   Excusing employees in these types of positions from drug testing requirements could lead to liability should an accident involving an impaired employee occurs.  Third, any decision not to test a particular employee, job classification, or group of employees should be made for legitimate, business reasons and should not intentionally or inadvertently discriminate against any protected class.

When in doubt, call an experienced employment attorney. 

About the Author

Andrew R. Kaake

Andrew R. Kaake

Andrew Kaake is a partner in the firm’s Labor and Employment Practice Area.

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