Marijuana Usage & New State Laws are Growing Like a Weed: What’s HR to Do?

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Marijuana and Gavel

  • Can you (and should you) still test for marijuana?
  • Can you prohibit employees’ off-duty usage?
  • Do you have to allow pot smoking as an ADA accommodation?

The complex maze of state and federal marijuana laws have left HR in a haze about what to do on pot-related questions like these.

At same time, an increasingly relaxed public attitude about pot means more employees are firing up – and getting caught in workplace drug tests. Last year, the percentage of U.S. employees testing positive for marijuana hit a 14-year high, all while positive tests for cocaine, opiates and heroin were on the decline.

This changing landscape and tight labor market has many employers asking a once-unthinkable question: Is it time to stop testing applicants and employees for marijuana?

At the HR Specialist Summit … our expert panel, led by attorney Jenn Betts of Ogletree Deakins, will provide practical, plain-English advice on how to draft clear, common-sense drug policies and testing practices. See the full Summit agenda and register now to grab early-bird pricing!

Federal law is fairly clear: Marijuana use or possession is still illegal. For some safety-sensitive positions, federal law requires you to fire employees who test positive for marijuana. And employers that hold contracts with the U.S. government must maintain drug-free workplaces.

But the true smoke screen of confusion comes with the jumble of state laws. Currently, 34 states have approved the use of marijuana for some use, including 10 that allow it for “recreational” purposes. And that list is expected to grow.

However, even in states where marijuana is legal, employers typically are free to drug-test employees and forbid them from using pot at work or be high on the job. It’s like alcohol in that regard.

But testing isn’t allowed across the board. Pro-pot legislatures have begun slapping new restrictions on employer testing. Just last month, New York City passed the first law that prohibits employers from conducting pre-hire drug tests for marijuana.

Many employers have already stopped doing pre-hire tests of marijuana for a more practical recruiting reason: A zero-tolerance policy requires firing otherwise good employees for failing drug tests, yet makes it hard to find replacements because so many applicants are testing positive these days.

Other employers are considering positive marijuana tests on a case-by-case basis, rather than zero tolerance. In those cases, they’re engaging in an interactive-like process after a positive test, confirming lawful possession of a medical-use card and/or confirming when the usage is occurring (not at work or immediately before).

Get your employment-law questions answered! At those mega HR conferences, you leave only with aching feet. At the 2019 Summit, you’ll receive training on every aspect of your HR job in smaller breakout sessions, interactive roundtables and Q&A sessions. To see the agenda and learn more about our two-track approach (Strategic and Compliance), go to

For HR professionals, employees’ marijuana and prescription drug usage creates a Bermuda triangle of risk – employment law … health care … safety and more! Don’t leave your compliance up to chance.

Get all your questions answered and learn how to develop the most legally and operationally smart policies and procedures at the HR Specialist Summit, Sept. 4-6. Plus, you’ll have a fabulous time with your peers at the legendary MGM Grand Resort & Casino.

See you in Las Vegas!

Dan Kaplan
Moderator, 2019 HR Specialist Summit

P.S. Two FREE Bonus Gifts. All HR Specialist Summit attendees will receive comprehensive course materials … 6 months of our HR Specialist newsletter … PLUS 6 months of our HR Specialist: Premium Plus online service – a combined $597.00 value – yours FREE!

P.P.S. We’ve negotiated our lowest room rate EVER with The Signature at MGM Grand – a quieter, all-suite resort hotel adjacent to MGM Grand (and much closer to the Summit meeting rooms). But rooms are extremely limited, so book yours today!

P.P.P.S. Your satisfaction is unconditionally guaranteed. If the HR Specialist Summit fails to meet your needs, we will immediately refund 100% of your tuition. No questions asked – and your free bonus gifts are yours to keep.

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