Frank Godfrey, a lawyer in Beaverton, Oregon, gave us a nice guest post today about marijuana drug testing and the workforce.

Godfrey is an attorney at Moomaw, Mesirow & Godfrey, LLP (MMG). MMG is a business law firm representing clients in Oregon and Washington. A significant portion of his practice involves advising business clients on a wide variety of employment issues. He also manages the firm’s litigation practice.

Godfrey has written for us a few times in the past on other related issues. Here are some links to his prior posts:

Frank Godfrey: Common Interests and Marijuana Legalization

Frank Godfrey: Thoughts on ICBC

Check out his new post below:

Cheers,

-SueVo

Marijuana and the workforce

By Frank Godfrey

Moomaw Mesirow & Godfrey, LLP

frank@mmgattorneys.com

Twenty-three states and the District of Columbia have legalized medical marijuana. Nine other states have legislation pending which would legalize medical marijuana. And four states, including Oregon and Washington, have legalized recreational marijuana.

A shift in societal opinions about the medical and recreational use of marijuana is the driving force for these new laws.

Despite these changes, there is no legal requirement to accommodate an employee who uses medical marijuana in compliance with local regulations. Likewise, there are no legal protections for employees and potential employees who use marijuana outside of the workplace and in the various states that have legalized its possession and use.

However, changes have begun.

For example, New York has proposed requiring employers to accommodate employees who use medical marijuana consistent with its regulatory system. Moreover, the District of Columbia has legislation pending that would prohibit drug testing potential employees for the presence of marijuana prior to a job offer.

Despite these sweeping changes at the state and local level, marijuana remains illegal federally.

Employers are navigating uncharted waters.

Young people are steering this shift in attitude and policy. These same young people often bring needed value to employers. This presents challenges in attracting and keeping employees as the law catches up with this changing attitude.

It is time to reconsider why employers drug test employees and applicants and, specifically, test for the presence of marijuana.

In my estimation, most employers consider drug testing a routine matter and have not given it a second thought in years, if not decades.

But there are some legitimate reasons for marijuana screening.

For example, federal contracts may require drug testing and screening for the presence of marijuana. Employers often have employees working in safety sensitive positions such as drivers and machine operators. Intoxicated employees in these positions can expose their employers to liability and create additional hazards to co-workers and the general public. Drug testing can be an effective deterrent to that.

But what will a drug test actually tell an employer about an employee who tests positive for marijuana?

It may tell them an employee has consumed marijuana in the last few weeks or months. But, the test will not specify when the employee was intoxicated. That is unfortunate. The reality is that a productive employee might be disciplined or terminated for consuming a legal substance outside of the workplace, never having reported to work intoxicated.

While alcohol is often not a good comparator for marijuana, drug testing is an exception.

Most employers have no issue with employees who responsibly use alcohol in their private lives and do not report to work intoxicated. This same standard should be extended to an individual who responsibly uses legal marijuana in their private life.

The ongoing shift in societal opinion will continue to be a driving force concerning drug policy issues. Now that momentum has been created to legalize marijuana, the public, including the business community, must creatively address and solve the many issues surrounding marijuana and the workforce.

Based on feedback we have received, we believe the business community will be the driving force for new ideas and changes to marijuana regulation in the workplace. It will be a matter of simple economic necessity.

Disclaimer: This information is provided for informational purposes only. This information is not intended to create an attorney-client relationship or to provide legal advice. If you require legal advice, please consult an attorney.