Post-accident marijuana positives reflect concern for employers.

Employers are asking whether testing for marijuana in states that have legalized recreational use continues to make sense.  Recent data released by Quest Diagnostics reveals that while the technology to test for impairment does not exist, positivity by testing reason and the difference between pre-employment and post-accident marijuana positives is up 167%, reflecting concern.

Accidents in the workplace increase workers’ compensation claims and lawsuits, putting employers in a constant state of playing defense.   

Knowing that marijuana use is up in the U.S and marijuana positive test results in the workplace and the correlation between marijuana-related traffic and workplace accidents are also up, what should employers consider in states that have legalized recreational marijuana use?

  1. Testing for marijuana is legal in all 50 states.
  2. Employers have the right to prohibit:
  1. employees from using or bringing marijuana into the workplace
  2. being at work under the influence or impaired by marijuana

The legalization of marijuana has not suspended the laws of

1) negligent hiring and 

2) respondeat superior.

Employers can be held liable for accidents and other harmful acts caused by or committed by employees.

The bottom line is that dropping pre-employment drug testing for marijuana will result in more marijuana users applying for work and increasing your liability.  Instead, offer a transparent policy stating that: employees who use, impaired, or bring marijuana to the workplace will face adverse employment action following applicable local and state laws, including termination.

Tip

When advertising an open position, clearly state that your company will test for marijuana, which allows the applicant to be aware and is especially important in recreational marijuana states.