The legalization of recreational marijuana around the country has been a cause for celebration for many; it’s also opened the doors to countless unanswered questions. One in particular is lurking in the minds of marijuana users and employers alike: With recreational marijuana use now legal, how much does employee drug testing still matter? Businesses and employees in states with legal recreational marijuana are suddenly finding themselves in the middle of a grey area. Here’s what we know so far, and here’s what employers and employees need to know.
Is Drug Testing for Cannabis Still Relevant?
The short answer is yes: employers still maintain the right to hold the drug policy they see fit, test for drugs, and penalize anyone who does not comply, so long as these drug policies and drug tests are implemented and carried out in compliance with current laws. As an employer, you are still in the position to address positive drug tests that could affect work performance, even if the employee in question used marijuana outside of normal working hours. These rights are protected by prop 64, and the text surrounding the legalization of recreational marijuana specifically states,
“Nothing in section 11362.1 shall be construed or interpreted to amend, repeal, affect, restrict, or preempt: The rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the work place, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”
Why the Lines are Blurry
There’s a major gray area surrounding this whole discussion, though, largely because science hasn’t yet determined how long it takes the cannabinoids from marijuana to clear out of a person’s body. We do know that cannabis remains in the system long after its side effects have worn off; but estimates vary from 25 days to 11 weeks to 15 weeks. This obviously presents a problem, because many will argue that it’s not fair to hold marijuana use against an employee or a potential employee when it last happened possibly 15 weeks ago, although it still might be in their system. It would also behoove employers to bear in mind that in some states (like Nevada), it’s considered unlawful for an employer to refuse to hire or discriminate against someone because they engage in the lawful use of substances outside the workplace and during nonworking hours, provided it doesn’t affect their performance while at work. This law was initially enacted in regard to tobacco users, but could potentially be applicable to marijuana users, as well. The ambiguous part here is determining whether performance is affected, and whether the affect is directly attributed to drugs.