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Marijuana & Drug Testing in the Workplace: What Employers Need to Know
Mariah Barr
9 mins read

It's still possible to test for marijuana responsibly and compliantly, even in the age of decriminalization. 

If your company employs truck drivers, you already know that DOT drug testing is an automatic part of hiring and ongoing employment. And because marijuana is still illegal at the federal level, there's no confusion about this drug: Your DOT drug panel must include marijuana.  

But when it comes to whether you can test other employees, like office workers, for marijuana, the answer isn't so clear cut, given recent decriminalization in various states.  

This article will answer common questions that often surface as employers consider their options: 

  • Why would a company institute workplace drug testing or a drug-free workplace if it isn't required?  
  • What exactly is a drug-free workplace? 
  • How should employers approach developing drug-testing policies and programs? 
  • What's the biggest difference between DOT drug testing and "general" workplace drug testing? 
  • What should employers keep in mind about marijuana and drug testing in the workplace? 
  • How does Foley help employers develop and maintain compliant drug-testing programs in the age of marijuana decriminalization?  

Why would a company institute workplace drug testing or a drug-free workplace if it isn't required? 

Simple. To save money. According to Behavioral Health Business, substance use disorders cost employer-sponsored health plans $35 billion per year.

But that's not all. 

American Addiction Centers notes that substance use disorders in the workplace can lead to the following: 

  • Workplace injuries and accidents 
  • Increased absenteeism 
  • Reduced productivity 
  • Low employee morale 
  • High turnover 
  • Theft  
  • Internal conflicts 

What exactly is a drug-free workplace? 

A drug-free workplace is exactly as it sounds. An employer creates a program designed to support a safe work environment, discourage alcohol and drug abuse, and encourage treatment and support for those employees struggling with substance use disorders. The program applies to all employees, regardless of their position.

How should employers approach developing drug-testing policies and programs, like drug-free workplaces? 

It's essential to understand if your employees must undergo drug testing due to their position or the industry you operate in. 

As we mentioned, if you employ truck drivers, you must comply with DOT drug-testing regulations, even if you don't drug test anyone else in your company. That said, you might decide to have a single "umbrella" drug-testing policy in place because of the many benefits a drug-free workplace offers. Or maybe you decide to test people in safety-sensitive positions but not general office workers. 
No matter which path you follow, the keys to successful workplace drug testing include: 

  • Consistency: You must apply your policy consistently. For example, you wouldn't drug test a worker in one facility but not test a worker in a second facility who's performing the same job. 
  • Compliance: Your policy and program must comply with all federal, state, and local laws. (In the case of marijuana legislation, this is a moving target.) 
  • Communication. You must communicate your policy clearly to all employees. This isn't a "once and done" measure, either. Ongoing communication is essential.  

What's the biggest difference between DOT drug testing and "general" workplace drug testing? 

DOT drug testing is very prescribed—it has to be the same for everybody. The biggest "issue" with DOT drug testing is changes to how drug testing is conducted. Urinalysis has long been the primary method. But the DOT's recent ruling on oral fluid testing will significantly impact DOT drug testing—for the better, since oral fluid testing can be administered in-house by a trained individual. Plus, it’s virtually impossible to cheat. 

With "general" workplace drug testing, there's more leeway in what an employer puts together. For example, an employer might decide that everyone must do a pre-employment drug test—and that's it. Or the employer might institute a drug-testing policy for safety-sensitive positions only. Or the employer might take a combo approach: Everyone it hires has to take a pre-employment drug test, but those in safety-sensitive positions will also be subject to ongoing drug testing. 

State laws will come into play, of course. The employer's drug-testing program must fall within what's allowable according to the state (or states) that the company operates.  

With this leeway, however, comes more headaches, especially around marijuana.

What should employers consider about marijuana and drug testing in the workplace? 

We mentioned this earlier, but it's worth repeating: Despite the recent decriminalization of marijuana in various states, marijuana is still illegal at the federal level. For employers who fall under the watchful gaze of a federal agency like the DOT, marijuana must remain on the drug-testing panel. 

For other companies, the answer to the marijuana question becomes more challenging. And unfortunately, knee-jerk reactions might inspire some employers to ditch marijuana on their drug-testing panels altogether. 

We strongly urge employers to reconsider this stance. Don't ditch marijuana on your drug-testing panel simply because the changing laws have made things complicated to manage—or because you think marijuana isn't a problematic drug.

  • Marijuana impairment in the workplace is a real thing. The National Safety Council (NSC) reminds us that marijuana "is the most frequently used illicit drug of abuse in the United States and the drug most often detected in workplace drug testing." The NSC cites a study where "employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries and 75% greater absenteeism compared to those who tested negative."
  • It is possible to develop a compliant program that tests for marijuana where permitted. This requires working with a reputable partner, like Foley, whose main job is to keep its customers' drug-testing programs compliant with state and federal laws. We keep up with the ever-evolving legislation, guide our clients accordingly, and update all policies, procedures, and paperwork without you missing a beat. We help you understand what you can test for—and what actions you can take based on results, particularly marijuana. 

How does Foley help employers maintain compliant drug-testing programs, even in the age of marijuana decriminalization?

We have the resources to manage DOT drug testing, drug testing for safety-sensitive positions, and a robust drug-free workplace initiative. 
What makes Foley different: 

  • We meet you where you are in your workplace drug-testing journey. For example, if a new HR manager inherited a ten-year-old drug-testing policy, we can update it. Or we can help create a new policy from scratch.  
  • We have in-house expertise and resources to manage whatever drug-testing program you want. Our legal team keeps up with the laws and what it means for your company specifically. We handle all DOT drug testing on the Foley side, and our team at Good Egg manages whatever else your workplace drug testing program needs.  
  • We have the largest drug-testing network in the country. With over 12,000 collection sites nationwide, a local testing facility is never far away. 

Let's talk about your workplace drug-testing program—and how marijuana fits into it. 

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