Employers have the responsibility to create a safe work environment as various states enact laws allowing the use of marijuana or marijuana products. The focus of a safe work environment includes prohibiting employees from using, being impaired by, or under the influence of marijuana while on the job, company premises, or during company time. In order to satisfy the objective of a safe work environment, employers need to create and implement a drug testing program suitable to their needs based on the company’s individual circumstances. The employer’s location, culture, and resources are all factors that should be considered. Implementing a drug testing program should encourage the maintenance of a safe workplace free of substance abuse.
All drug testing programs should include:
- a written policy statement with a clearly defined purpose,
- supervisor training and awareness,
- employee education, and
- testing protocols which identify testing objectives, methods of testing and consequences.
Developing a well-defined company drug testing program in order to create a safe work environment minimizes the risk of harm to persons and property, and, ultimately, will decrease the potential of employer liability. The program needs to be publicized, trained, and uniformly applied to all employees. It is also important to have active, visible leadership and support so that everyone understands their roles, rights, and responsibilities.
Written Testing Program
An effective drug testing program should include clearly written policies and procedures that define the terms of the policy, including the use, sale, or distribution of substances banned from the workplace. This includes defining “marijuana”, “cannabis”, “CBD” or other derivatives of the substance, rather than simply prohibiting the use of “illegal drugs”.
Supervisory support and consistent implementation of the employer’s drug testing policy has a great influence on the success of a testing program. Supervisors are responsible for helping to identify and address performance issues when they occur, which may include substance abuse. It is important that all supervisors have been adequately trained to understand the organization’s policy and their role in its application, while also understanding the potential signs of impairment and the impact on workplace safety and performance.
Educating staff about the testing policy is a critical step towards a successful program. This includes providing employees with information about the clinical issues relating to cannabis products, and the potential impacts it can have on workplace safety, productivity, performance, accident rates, and overall costs. It is important to explain the procedures involved in the testing program, consequences for violation of the policy, and the elements of any potential employee assistance programs (EAP).
Employers should understand and implement potential testing solutions that fit their organizational needs. These optional solutions include:
- Pre-Employment Testing: Employers often leverage a pre-employment drug test. This includes testing all applicants who are offered a job as a standard part of the post-offer screening process.
- Random Testing: Employers can implement a random testing policy in which every employee is eligible to be selected at random to provide a specimen for a drug and/or alcohol test. These tests should be unannounced and unexpected by employees. Random drug testing has little to no advanced notice, which is an effective deterrent to employee drug use.
- Reasonable Suspicion: Such a policy allows employers to require employees submit to a drug test if there is suspicion that the employee is under the influence of drugs or alcohol on the job, company premises, or during company time.
- Post-Accident Testing: These procedures require that any employee involved in an on-the-job accident or injury may be tested for drug or alcohol use. Accidents can include driver negligence, a workplace injury with medical treatment on or away from the scene, disabling damage, or car removal.
- Follow-up Testing: Employees who have tested positive for a drug test and have attended drug related counseling may not return to work until they have been evaluated by a medical professional in a substance abuse treatment facility and have successfully passed a follow-up drug test.
Employers should identify testing procedures that fit their organizational needs, the legal differences within jurisdictions in which they operate, and the unique liabilities the organization faces. Understanding your legal restrictions and the safety needs of your organization will help you identify the right procedures for your situation.
Employers should become familiar with their state’s cannabis laws to determine whether they address employers’ rights and obligations relating to workplace drug testing policies. Employers would be well served by partnering with legal counsel to review and update existing workplace policies concerning drug testing, documentation, and enforcement processes. It’s imperative for employers to ensure that workplace policies and procedures are clearly written and enforced on a consistent basis to avoid exposure risks.