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Drug Testing Substance Abuse Workplace Testing

Workplace Drug Testing vs. Marijuana Legalization in Washington State and Colorado

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It’s been weeks since recreational marijuana use has been legalized in Washington and Colorado, but until now, many are still asking how the new law will impact drug-free policies in schools and businesses. Although some universities and organizations have already issued statement that they are not going to change anything in their drug testing policy, others continue to consult with their lawyers and await for further announcement from the government.

Still, one important question remains: how do employers in these two states handle the tricky issues associated with the passage of Amendment 64 in Colorado and Initiative 502 in Washington which collide with the federal government’s drug laws?

As often stressed in various references and by the government, marijuana is still a Schedule 1 substance and the Justice Department earlier maintained their “enforcement of the Controlled Substances Act remains unchanged.”

However, if one will review the provisions of Colorado and Washington State’s marijuana legalization measure, there was nothing that specifically address employers’ rights to drug test their employees. Colorado’s Amendment 64 states “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.” Similarly, driving under the influence of marijuana remains prohibited.

In Washington, Costco said “Drug testing is a requirement to be hired. Nothing will change. Marijuana is illegal under federal law.”

The Boeing Company also disclosed similar stand, saying “Use of marijuana by Boeing employees is prohibited regardless of state law.”

As employers need to decide how to approach Washington and Colorado’s new marijuana laws, a legal expert, Michael W. Groebe from Foley & Lardner LLP, with experience representing employers before state and federal courts and administrative agencies offered a sound advice.

“First, employers should continue to focus on the employee’s conduct while at work. If the employee is under the influence or using marijuana at work, the new laws are unlikely to protect them from discipline,” Groebe explained. “Second, employers should remember that marijuana remains prohibited under federal law. Even with Colorado’s “Lifestyle” law that prohibits employers from disciplining employees for engaging in lawful conduct while off-duty, federal law still makes the use of marijuana unlawful.”

Additionally, if an employer requires drug testing, including the policy in the employee handbook and informing job applicants and existing employees could prevent the organization from wasting money on pre-employment drug tests.

Drug Testing Substance Abuse

Businesses Make a Move Against Drug Abuse

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Drug abuse undoubtedly has an impact on the community, and for employers into the United States, it means an estimated cost of $276 billion a year.

Seventy six percent of people who are dealing with drug and alcohol issues are employed. These employees, according to the Substance Abuse and Mental Health Services Administration, are not as productive on the job. They are more likely to take long lunch breaks, leave early, or sleep on the job, and are three and a half times more likely to be involved in a workplace accident. Their health care expenses also cost twice as much as their co-workers.

Employers attempt to control substance abuse costs in two ways: drug testing, and the implementation of an Employee Assistance Program.

In the state of Oklahoma, changes made to its Drug and AlcoholTesting Act provide employers with more latitude in conducting drug tests for their employers, and reduces the cost of unemployment insurance by denying claims from former employees who lost their jobs because they failed a drug test.

Before these changes, which took effect in November, a worker could be subjected to drug testing if the employer had reasonable suspicion. The amendments provided “for cause” testing, and expanded the circumstances that would trigger a drug test, such as negative performance patterns and excessive or unexplained absenteeism or tardiness.

Former state Rep. Dan Sullivan, one of the authors of the bill, shared: “We wanted to make sure we protected employees … but also make it simpler for employers to implement.”