Recreational Marijuana Laws: What Does this Mean for my Workplace?

In response to the ongoing shift in the policy landscape, we’ve created the following FAQ to help you better understand your rights to uphold a drug-free workplace.

What is a “drug-free” workplace?
A drug-free workplace is designed to prevent employees from being under the influence of illegal drugs and to eliminate all illegal drug activity within the workplace. It is also designed to prevent employees from being under the influence of legal controlled substances such as marijuana and painkillers on the job, if such influence impairs the employee’s ability to safely and effectively perform the essential functions of his or her job. This means, if an employee tests positive for a controlled substance, you have the right to terminate under this policy—even if they are not under the influence at that time.

Note: You have the authority to make the decision of how strict you want your drug-free workplace policy to be.

What activities does a drug-free workplace policy cover?
A drug-free workplace policy can prohibit the use, manufacture, distribution, dispensation, sale, purchase, transfer, possession, or being under the influence of an illegal drug by an employee, within the workplace. This also applies to any legal controlled substances that are being used for any other purpose other than medical.

Can I have a drug-free workplace if recreational marijuana is legal in my state?
Yes. By definition, a drug-free workplace prohibition includes recreational marijuana—which is still considered an illegal drug under federal policy. Federal and state laws outline minimum requirements for drug-free workplace policies, however, your organization has the authority to implement additional regulations, as long as they are fair, impartial, and noninvasive.

Are drug-free workplaces required by law?
Federal law does not explicitly mandate drug-free workplaces for all organizations. The Drug Free Workplace Act states that any organization that receives a federal contract of $100,000 or more, or that receives a federal grant of any size, must maintain a drug-free policy. Redwoods also continues to recommend that all youth-serving organizations maintain a drug-free workplace policy.

When should drug-free workplaces deploy drug screening?
Depending on your organization’s policy, enforcing a drug-free workplace may require drug tests to be performed at various stages of employment. Those stages include:

• Pre-hire as a part of post job-offer conditions.
• At random using a scientifically valid random selection process.
• Post event when an accident or incident has occurred within the scope of employment.
• Reasonable suspicion to believe that an employee is under the influence of an illegal drug, or controlled substance.

What type of drug screens should be used?
We recommend saliva testing, as it is minimally invasive and generally detects marijuana consumption within anywhere from 1 hour up until 24 hours after use—making it easier to detect if it is being consumed before or at the workplace.

Who should receive drug screens?
If your organization operates as a drug-free work environment, all employees should receive a drug test, but especially those in a “testing-designated position”. A testing-designated position includes any employee who:

• Drives an automobile or piece of mobile equipment
• Works directly with children
• Guards a pool or waterfront
• Works with power tools, equipment or machinery
• Works with caustic chemicals
• CDL Drivers
• Does any function where significant injury could result from employee error

How do Department of Transportation rules effect drug-screening?
The Department of Transportation requires Commercial Driver’s License (CDL) drivers to be drug screened pre-hire, post-event, and at random on a quarterly basis. CDL drivers are also required to submit to a drug screen if they have given an employer reasonable suspicion to believe that they are under the influence of an illegal drug or controlled substance.

DOT mandates that laboratory urine tests screen for the presence of the following 5 classes of drugs:

• Marijuana
• Cocaine
• Opiates – opium and codeine derivatives
• Amphetamines and methamphetamines
• Phencyclidine – PCP

Regardless of individual states legalizing the sale and/or use of marijuana, CDL drug testing requirements will likely remain the same. You can read more about CDL drug screening on FMCSA’s website.

Should my organization require its employees to sign an Acknowledgment and Consent form?
If your organization is drug-free, it is important to have all employees sign an Acknowledgment and Consent form agreeing to uphold a drug-free workplace before they begin employment.

Keeping drugs out of your organization can be difficult, but there are ways to minimize that possibility and keep your communities safe. For additional details on how to maintain a drug-free workplace, federal policy on the subject, and a sample Acknowledgment and Consent form, review our Drug-Free Workplace Guide.