How Marijuana Legalization Affects Employers

If you operate a business in a state that has legalized marijuana either medically or recreationally, have you thought about what will happen if a valued employee pops positive for THC on the random? Has that happened to you already?

What if the job candidate you deemed a perfect fit for the company right up to the pre-employment drug test busted that plan to pieces with a positive THC result?

Many people who live in states that have legalized pot assume that employers can’t test for it any longer. That’s a pretty risky and somewhat ludicrous assumption on their part. We test for alcohol, don’t we? And, prohibition ended in 1933!

Regardless of the scenario you choose, employees are testing positive for THC in higher numbers than ever. The medical use of the drug is becoming more widespread. Thirty-three states have legalized its medicinal use in some form.

Add to that the growing number of states that are legalizing its recreational use and the problem grows.

Either way, employee marijuana use poses a problem for business owners in more ways than one.


Marijuana and hemp are members of the cannabis family. Both THC and CBD are part of these plants. Marijuana contains a higher level of THC and a lower level of CBD. The hemp plant’s ratio of the two is the opposite.

What’s the buzz about?

Tetrahydrocannabinol (THC) is the component of the marijuana plant that causes the user to experience feelings of euphoria. It stimulates the brain to release dopamine. Using the drug impairs motor skills. It can cause problems with coordination, a lack of response time, and reduce an employee’s productivity on the job.

When used medicinally, it is mainly known for treating nausea associated with chemotherapy and relaxing the extremely taut muscles of patients suffering from MS. But it is becoming more widely used as a treatment for a variety of other conditions.

In either case, impairment raises a safety concern.

Take your medicine

Cannabidiol (CBD) is the component of cannabis that is said to provide medicinal benefits. CBD oils derived from the hemp plant contains lower levels of THC than the marijuana plant. It is used to treat a variety of maladies including nausea, anxiety, and acne.

The problem with using either of these forms of treatment is the THC level.

Cannabis as a whole remains classed as a Schedule 1 by the DEA (Drug Enforcement Agency), and its use is prohibited.

People who use marijuana medicinally and take a drug test, are going to yield a positive result. Those who use CBD oils are at risk of a positive test result due to the unregulated levels of THC in the product they are consuming.

This is because THC metabolites remain stored in the body for much more extended periods than the drug impairs a person.

Most CBD oils only contain traces of THC and some products advertise having no THC whatsoever. Consumers of CBD products should do their research and find a reputable source with low or zero levels of THC.

On their own time

Employees who use marijuana recreationally test positive even if they use marijuana on their off time. Data shows that a person is under the influence of the drug for about two hours after consumption. However, the THC metabolites stored throughout the body cause a positive test result for days or even weeks after ingesting the drug.

This will cause a positive test result for a varied length of time depending on the drug test that their employer uses.

  • The urine test yields a positive result for up to 30 days.
  • The hair follicle test shows the use of the drug for 90 days.
  • The saliva test determines a positive result for up to 72 hours.

With no way to accurately determine if someone is high at a specific moment in time, most employers are opting to keep their current drug-free or zero tolerance policies in place.

Did they get the cart before the horse?

For the time being, if regulated by the DOT to test employees for drugs, marijuana will stay on your testing panel. The decision is made for you; no if’s, and’s, or buts about it. The Department of Transportation is making zero changes to the zero-tolerance policy.

But, what if you aren’t a mandated employer?

Actually, first off, if the STATES Act passes, employers may wind up following state legislation regarding those in the safety sensitive workforce. However, we’ll also note that there is a call for stipulations to be put in place allowing employers that are currently mandated to continue drug testing. Other carve outs may be considered as well.

The majority of employees would never consider coming to work under the influence of marijuana. However, the risk remains of a workplace accident resulting from someone that is.

The good news is that technology is always evolving.

Some tech companies out there determined to create a marijuana breathalyzer. A few companies are currently in the testing phase and hope to have a product ready for market very soon.

Mouth swab technology is also becoming more advanced. Hopefully, it won’t be long before there is an on the spot detection swab ready for market.

But, what do we do in the meantime?

It won’t all go to pot

The first thing you can do is to contact a compliance expert, a lawyer, or an HR expert that is familiar with all the changes in your state legislature. They can help you tweak your current drug-free or zero tolerance policies to comply with the new laws.

Some employers are rethinking their policy altogether and are adding a Second Chance clause to the mix. Employees that test positive for marijuana are, literally, allowed a second chance. The particulars of what that looks like in your company will be at your discretion.

Whether you decide to make any changes to your company’s policies or not, consider handing out printed copies as reminders of where you stand. Maybe it’s time to host a class linking changes in state laws and the dangers of coming to work stoned.

Our nation’s view on marijuana is changing. As employers, we should commit to staying abreast of the situation. Continue your quest to discover the best plan of action that keeps your workplace safe for all concerned.

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