With the number of states with legalized marijuana growing every year, more and more questions have come up recently about workplace drug testing and what employee and employers’ rights are with regard to drug testing at work.
You may think, “Why are people so concerned about drug testing in the workplace? Are that many people under the influence at work? Who would refuse a drug test at work and why?”
Changing Times; Changing Workplace?
We would like to think the mechanic fixing our car is not still high from the night before, or the teacher guiding our child has not used an illegal substance since his career began, or the doctor operating on our mother is not tired from a drug-fueled birthday weekend with her husband, but we can’t know all of those scenarios to be true. Not in this day and age where the opioid crisis is affecting every corner of the country, marijuana dispensaries are as common as convenience stores in some cities, and kids are using even harder drugs at a terrifyingly young age.
People seem to be using drugs more often, in larger quantities, and are less likely to confine their drug use to days/nights off from work. It’s an employer’s job to ensure he’s providing a safe, productive work space for all, and for that reason, more employers than ever before are requiring drug testing in some form for their future and current employees.
Workplace Drug Testing Misconceptions
Let’s take a look at some common workplace drug testing myths, and let’s debunk them with some cold hard facts.
Myth: Two heavy machinery operators at a construction site collide because reckless driver, John hits Bill head-on with the piece of equipment he was driving. Because both men were operating machinery at the time of the accident, both must be drug tested right away.
Fact: Actually, because John was at fault and was operating the machinery in a reckless manner, he will be drug tested, but there is usually no reason to drug test Bill. While it would be perfectly legal to drug test both men involved in the accident, because John was behaving in a reckless and dangerous manner, the employer should only collect a sample from John.
Myth: In states in which medical marijuana is legal, employers must allow employees who test positive for THC to remain on the job regardless of how or why they use marijuana.
Truth: Marijuana remains illegal under federal law, and employers must follow state and federal law when it comes to their employees. At this time, there is no employer obligation to accommodate recreational marijuana use, but when employees use marijuana with a legal prescription, the Americans with Disabilities Act (ADA) comes into play.
An employer in a state where medical marijuana is legal may have to make “reasonable accommodations” for an employee who tests positive for THC (the active ingredient in marijuana) if the drug is being used to treat or relieve the pain related to an actual medical disability defined by state laws. The employer may have to implement an “interactive process” and determine (with the employee) whether the doctor-prescribed medical marijuana use can be accommodated in a reasonable manner. The state laws for the interactive process and accommodations for THC use vary, so what you know to be true in your current location may not apply should you transfer.
Myth: If an employer suspects a certain employee of being under the influence, he can legally manipulate “random” drug testing to get a sample from the suspicious employee.
Truth: While it’s not necessarily illegal to manipulate your “random” pool of employees getting drug tests, if you are singling people out for the wrong reasons and get caught, you can be sued for discrimination (if it can be proven why you singled certain workers out for drug testing—race, religion, country of origin, sex, age, etc.).
To be safe, just imagine you have to swear under oath that your drug-testing pool is random; could you do that and live with yourself and consequences? If the answer is “yes,” then you are doing the right thing. If you’re going to ask for random drug tests, then make sure they are random drug tests and not targeted drug tests to get rid of an employee you don’t like.
