1. Every state laws is different

Only two states allow the “recreational” use of marijuana: Colorado and Washington. There are another 20+ states that allow the use of medical marijuana, but even those laws differ with regards to what types of health conditions qualify, how much may be possessed, whether it can be grown in the home, and more.

2. Marijuana use is still illegal on the federal level. 

Smoking pot is still against the law regardless of what state laws may say.  However, marijuana use is still on the rise. According to the Quest Diagnostics Drug Testing Index,the percentage of positive marijuana tests among American workers has increased by 6.2% in the past year. 

That rate has risen by more than 20% in both Colorado and Washington. Besides state legalization, “relaxed societal views” are being pointed to for the increases marijuana use.

3. You still have the right not to work contractors testing positive for pot. 

Employment experts and attorneys agree that companies still have a right to have a drug-free policy that prohibits marijuana use. However, there are a couple of variables to consider. For instance, you can decide to allow the use of medical marijuana. Using a third party screening service makes this is a little easier. They typically will ask a worker for additional information when a positive result is received.  If the worker produces a prescription for the drug, you as the employer will receive a negative result and will not be aware that the contractor uses medical marijuana.

4. Future court decisions could impact employers' ability to enforce drug-free policies in the future.

For example, a pending case in the Colorado Supreme Court questions whether the state’s law against terminating employees for participating in legal activity outside of work applies to marijuana usage. In another case, a New Mexico medical marijuana user claims her termination violates the state’s Human Rights Act prohibiting discrimination against people with serious medical conditions. Other cases are questioning how the Americans with Disabilities Act applies. So far, courts have ruled in the employer’s favor, but what happens if a future case goes the employee's way or if federal law changes?

For now, the main thing is to just keep the issue on your radar. And as always, be sure that any drug-free policy is clear and has been enforced consistently.You also want to be sure to always follow the proper procedures under the Fair Credit Reporting Act (FCRA).

This general summary of law should not be used to solve individual problems since changes in fact situation may require a material variance as to the applicable law.  This article is for information purposes only and should not be construed as legal advice.

Debbie Fledderjohann is the President of Top Echelon Contracting, Inc.