The growing number of legalized marijuana states indicates a public perception shift of marijuana’s role in their communities. Many states have legalized the use of medical marijuana for patients with chronic or severe medical diagnoses, but many states are also starting to legalize the use of recreational marijuana, creating an issue for employers who are now unsure whether they are legally allowed to continue screening applicants and employees for marijuana use.

Does marijuana legislation protect employers?

More than half of the drug testing laws passed in 2016 were directly related to marijuana regulation, and a large percentage of the current regulation revolving around marijuana is heavily favored toward employer and business protection.

Currently, California regulation (Health and Safety Code – HSC, 11362.45) states, “Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: … (f) The rights and obligations of public and private employers to maintain a drug and alcohol free workplace … or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state of federal law.” This allows employers in California to continue drug screening their employees and applicants in order to maintain their zero-tolerance marijuana policies.

Additionally, Florida’s regulations (Chapter 381, Public Health – General Provisions) also protect employers from many of the issues surrounding marijuana legalization: “Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any… place… of employment…”

The debate over consumption, safety, and workplace issues.

Some believe since recreational marijuana is now legal in a growing number of states, businesses should no longer be able to screen or reprimand employees for drug use, often drawing parallels between marijuana and alcohol effects. In business practice this does raise questions, as a substantial amount of research currently supports risk associated with marijuana consumption.

According to the National Institute on Drug Abuse (NIDA), the potency of marijuana has risen by a factor of three in the last 30 years. This increase, coupled with the recent legalization movements, has caused numerous agencies from marijuana-legal states to report severe increases in public safety hazards.

Following the legalization of medical and recreational marijuana in Colorado, the Rocky Mountain High Intensity Drug Trafficking Area; an organization governed by the Office of National Drug Control Policy; whose goal is to facilitate cooperation and coordination against drug trafficking in areas surrounding Colorado, Utah, and Wyoming; have reported the following conclusions:

• Traffic fatalities involving operators testing positive for marijuana have increased 100 percent from 2007 to 2012
• The majority of driving-under-the-influence arrests involve marijuana and 25 to 40 percent were marijuana alone
• There has been a 16 percent increase in toxicology reports showing positive marijuana driving-under-the-influence results
• 57 percent increase in marijuana-related emergency room visits from 2011 through 2013
• 82 percent hospitalization increase from 2008 to 2013

This evidence strongly supports the hazards irresponsible marijuana use can cause. The cognitive impairment that marijuana imposes on the user produces a substantial risk for any employee operating or working near heavy machinery.

It also has a significant impact on a person’s ability to perform basic work functions. In a recent study, the National Academy of Sciences (NAS) stated that “recent cannabis use impairs the performance in cognitive domains of learning, memory, and attention” with “recent use” being defined as a 24-hour period.

There are also other major costs that employers may incur from employees who are regularly using marijuana that are related to insurance and healthcare expenses. NAS has also found that smoking marijuana on a regular basis is associated with chronic cough and may be linked to greater mental health symptoms for people suffering from bipolar disorders.

Legislation is evolving and ongoing.

There have already been more than 20 bills introduced in the post-2016 election regarding the regulation and legalization of marijuana. The landscape of marijuana legislation is likely to continue to push in favor of legalization, making the importance of developing an effective drug-free workplace policy and having an effective drug screening program a critical business decision for your organization.

If you have questions about developing a drug-free policy, or about your current screening program, please don’t hesitate to reach out to us. A-Check Global’s team of dedicated professionals are available to help, and can provide friendly, accurate guidance. Give us a call today at 877-345-2021, or email support@acheckglobal.com.