A good friend of mine is particular about where he works—but his deal breakers aren't the usual suspects, like a generous vacation policy, flexible hours, gym stipends or free lunch. His core requirement from an employer? No drug testing.
He spent several years working at Trader Joe's, since they don't test their employees, and wouldn't even consider applying to Disneyland with its strict zero-tolerance policy. And now, after receiving a medical marijuana card, this California resident is confident he can apply anywhere.
Not so fast, according to labor lawyers. While the legal ramifications of marijuana are easing, companies still have the right to set boundaries—even strict boundaries. With new standards for drugs in the workplace, HR leaders are revisiting their policies to reflect the evolving state laws and changing public opinion.
Corporate Policy vs. Public Opinion
There's no question that today's workforce is muddled when it comes to drug policies. On one hand, consumer approval of marijuana has never been higher. Some 43 percent of Americans use marijuana, up 9 percent since 1997, and 51 percent support legalizing the drug, according to CBS News.
On the other hand, corporate policies on drug use are tightening. Some 3.7 percent of U.S. companies tested their employees for drugs in 2013, compared to 3.5 percent in 2012, according to Quest Diagnostics. Perhaps unsurprisingly, marijuana continues to be the most commonly detected illicit drug—Quest reports that marijuana positivity in the combined U.S. workforce increased by 6.2 percent in 2013.
For some companies that administer drug tests, there's a semi-legal quandary. Next year, Nevada voters will decide whether their state will become the sixth region, following Alaska, Oregon, Washington, Colorado, and Washington D.C, to legalize recreational usage. For companies that operate in multiple states, this makes defining a consistent policy difficult.
But for many employers, the bigger concern is medical marijuana, which is now legal in 23 states along with Washington D.C. "No one wants to be perceived as mistreating someone with an illness," says labor lawyer Todd R. Wulffson, Partner, Carothers DiSante & Freudenberger. "You can have an employee who takes a lunch break and goes to smoke and comes back high, but says he has medical reasons to do so. But at the end of the day, it is still illegal under federal law."
The Path of Zero Tolerance
Companies are taking two different, but similar, tactics in solving this matter. First, many are simply adopting federal guidelines, which mandate strict drug-free zones.
"Every state can approach this differently. If you are a company facing differing state laws, many are defaulting to the federal law," says Wulffson. "Zero tolerance is easy."
For any company that works with or aspires to work with the government, zero tolerance is also necessary. Due to Drug-Free Workplace Act of 1988, any agency that receives federal funds must employ drug-free workers, ensuring that the government is the largest drug tester in the U.S. (even with medical clearances).
"It is important for people to remember that while some states have legalized marijuana, the federal government has not. Employers generally have the authority to restrict the 'recreational' use of marijuana by employees and impose sanctions, including termination, on employees with positive drug tests in all 50 states," says Dr. Barry Sample, director of science and technology at Quest Diagnostics Employer Solutions.
The New Trend of Specificity
The other tactic is to become even more specific about what is acceptable and unacceptable with these policies. Wulffson is quick to point out that today's level of specificity is a new trend: "It used to be okay to say no illegal drugs and leave it at that, but now we have to say 'no marijuana', 'no prescription use that includes Vicodin or Valium', and even 'no cough syrup.'"
Some employers are waiting to see whether a general consensus will emerge, but that is a mistake, says Paul Armentano, Deputy Director of NORML, an advocacy group working to reform marijuana laws. He wants employers to be more proactive.
"For decades, drug testing has largely been technology designed for drug detection, not drug impairment," says Armentano. "As cannabis continues to become regulated rather than per se illegal, there will be a greater need for employers to re-examine these methods and to move in the direction of performance-based testing."
He points out that the Supreme Court in California, Oregon and Washington has upheld employer sanctions against employees' off-the-job medical marijuana use, and this issue is presently before the Court in Colorado.
At the least, the most important thing is to have a policy in place—regardless of what you decide. "Lots of creative industries, like advertising, don't care at all about drug use. But that doesn't mean they can turn a blind eye and say it is okay," says Wulffson. In fact, by not having a policy, employers may be implicitly endorsing drug use.
"You never know what people are going to do," cautions Wulffson.