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  • Writer's pictureJennie Tannenbaum

Why Legalized Cannabis Changes Everything for Drug Testing in the Workplace

You have a rocking savvy drug policy in your workplace, right?

You’ve been keeping up with the changes to the workplace drug policy by updating it when medicinal marijuana became legal. You then updated it again when recreational marijuana became legal. As a result, your policy is perfect and rolls with the law …


Maybe not!


Today, a good drug policy contains specific details for the testing of marijuana and for other drugs. To have an effective drug policy it’s necessary to take a look at traditional drug testing and how it interprets recreational marijuana use by job candidates and current employees.

While you may have customarily drug tested across the board, it would be wise with this tight job market to be selective with positions that you choose to drug test, since an across the board test may turn away qualified top applicants and shrink the talent pool further.


Selective testing positions could look something like this, positions where safety is a concern, continue to test these positions, so that safety is ensured and continues to be met. While positions which do not pose a safety concern are not always selected for testing. You may choose to test dependent on other factors for these non-safety positions.


The reliability of the test is something to be considered in putting together an effective policy. The most common test for testing marijuana is the urine test. It tests for the presence of THC the psychoactive chemical in marijuana which has been known to stay in the body for up to 30 days, yeah, thirty days.


The pee test can be problematic, because it fails to determine the frequency of the marijuana usage. If the test result is positive it doesn’t allow the employer to discern whether the usage is frequent or infrequent. You might turn away a well-qualified applicant who is an infrequent user. The infrequent use might not impact their ability to perform on the job or fulfill the duties and responsibilities of the position.


Urine testing is a problem not only in testing for job applicants, but also when testing existing employees. You might have an exemplary employee with excellent performance reviews as well as other great attributes who tests positive for marijuana despite infrequent use, does this call for discipline or termination? This is where selective testing as long as it is a non-safety position may be wise to implement.


Maine has passed a law making it illegal for an employer to not hire an applicant based on the presence of THC in a drug test. Nevada has passed one as well. Presently, there is no law in Massachusetts to make it illegal, so in the meantime make some savvy changes in your drug testing and understand the implications. I can review your current policy to ensure that it’s in compliance with the law and the best one for your company and your employees.


This article is for information purposes only and is not meant to be construed as legal advice. Contact me at jennie@simplygoodlaw.com or at 978-681-0017 to revise your drug policy as well as your entire employee handbook.

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