Question:
With marijuana now legal in our state, do we need to redo our pre-employment drug screening? Currently, those who test positive for anything on the screening are not hired.
– Restaurant Manager, Seattle, WA
Answer:
Maybe. It’s a new question that employers haven’t quite gotten their heads around, further complicated by the fact that while marijuana is legal for private possession in Washington State (and Colorado), it is still illegal at the federal level.
Like many gray-area decisions, it is a matter of balancing the risk of knowingly hiring a drug user with the risk of excluding someone who legally has a right to employment. A hypothetical scenario on each side of the question comes to mind:
- You hire someone who tests positive for marijuana on the basis that, like alcohol, it is now legal, and to exclude that person would be unfair. They exercise poor judgment by over-serving a guest alcohol, and in a dram shop suit it is argued that you also exercised poor judgment by knowingly hiring this person despite the positive drug panel.
- You refuse to hire someone who tests positive and have an ADA complaint on the basis that her or his illness or disability requires marijuana use outside of work hours.
Things could get messy either way.
Michael Traud, hospitality law professor at Drexel University in Philadelphia, says, “As more states legalize marijuana, it will become increasingly difficult for employers to use drug screening for marijuana. Employees who use marijuana prior to work will still be treated in the same way as an employee who came to work intoxicated from alcohol. Those who are taking marijuana for medical reasons will have a very strong argument in court if they are not hired due to a positive drug test. The question is whether companies will still focus their drug screening on marijuana in the future or eliminate it altogether.”
For now, my advice is to update your employee manual to specifically indicate no tolerance for controlled substance use in the workplace or before a shift. I would recommend consulting with your state restaurant association and your attorney to see how other restaurants are handling this issue in your state. And overall I’d err on the side of caution by following your previous practices until there is a precedent to guide you otherwise.
More on marijuana legalization here.