Not long ago, maintaining a company drug policy was a fairly straightforward HR matter. But in the last few years, rapid changes to America’s social and legal landscape have left many employers feeling like they’re tracking a moving target.
As a growing number of states legalize recreational and medical marijuana—and as we learn more about the dangers of opioids, even those that are properly prescribed—it’s getting trickier for companies to set relevant drug-related HR policies and procedures.
After all, a company’s drug policy impacts productivity, workplace safety, hiring practices and more. Employers have both a right and a responsibility to ensure a drug-free workplace.
While there is no easy, one-size-fits-all solution, let’s review some of the ways employers are revising their company drug policy to meet today’s complex challenges.
Rethinking a Zero-Tolerance Drug Policy Regarding Marijuana
Since 2012, nine states have legalized recreational marijuana. Another half-dozen states may follow this year. Although marijuana remains illegal under federal law, in 2013 the Obama administration demonstrated respect for the states’ decisions by issuing the Cole Memo, which discouraged federal prosecutors from pursuing state-legal marijuana enterprises.
However, earlier this year, Attorney General Jeff Sessions rescinded the Cole Memo, indicating that the Trump administration is taking a tougher position on marijuana use, even in states where it’s currently legalized. It’s not clear at this point how this will shake out.
In the meantime, public support for the legalization of marijuana continues to grow. According to a recent Gallup poll, 64% of Americans support it. According to government statistics, 7.2% of Americans age 26 and older use it—many of whom are presumably in the workforce.
And of course, traces of THC—the active ingredient in marijuana—remain in the human body long after its effects have worn off, which makes drug testing less conclusive.
So what does this mean for employers? In states where marijuana is legal and the job market is tight, some companies say they find it increasingly difficult to find qualified “drug-free” employees.
And, according to a recent SHRM article, in order to meet recruiting and retention goals, some of these employers are relaxing their drug policy and hiring practices for non safety-sensitive positions, without changing HR policies and procedures regarding on-the-job impairment. Is that something your company is likely to consider?
Making Accommodations for Cardholding Medical Marijuana Users
The situation’s even stickier with regards to medical marijuana, which is now legal in 30 states.
According to a 2017 report by the National Academy of Sciences, Engineering and Medicine, marijuana offers conclusive medical benefits, including pain reduction (its most common usage), lessening of muscle control spasms (such as with multiple sclerosis) and easing nausea in chemotherapy patients. For some employees, it’s literally what makes it possible for them to do their job.
While employers are not required to provide accommodations for cardholding employees under the American with Disabilities Act, in some states, medical marijuana laws prohibit workplace discrimination against registered cardholders. In some recent cases, courts have ruled that it’s the employer’s duty to accommodate workers and job applicants covered under state medical marijuana laws.
As a result, some employers are modifying company drug policy to take a more flexible, case-by-case approach to cardholding medical marijuana users. They might offer an employee leave time or modify job duties when needed, or implement more flexible hiring practices. Where does your company stand on this?
Expanding Drug Tests to Include Opioid Usage
According to the Centers for Disease Control and Prevention, opioid prescriptions nearly quadrupled from 1999 to 2014, as did related overdose deaths. The government recently declared the opioid epidemic a national health emergency.
Not coincidentally, effective January 1, 2018, the U.S. Department of Transportation (DOT) began requiring that all the companies it regulates conduct employee drug testing for opioid use. This affects commercial drivers, flight crews, railroad workers, and other safety-sensitive transportation-related jobs.
But a growing number of employers that do not report to DOT are adding opioid testing to their company drug policy, trading in the conventional five-panel drug test for a more comprehensive 10-panel screen.
However, such a move raises challenges. How do employers distinguish between prescribed and illegal opioid use without breaking HIPPA privacy rules? And how should employers respond when employees test positive? Because this is new ground, for many employers, the guidelines are still evolving—are you one of them?
Before You Update Your Company Drug Policy…
Needless to say, if you’re thinking about updating your company drug policy it’s critical to ensure that it’s in compliance with federal, state and local laws.
In addition, the best company drug policies are fair, reasonable, clearly communicated to employees and consistent with the company’s culture, ethics and objectives.
At EPAY, our integrated HCM solution helps employers administer their unique HR policies and procedures—whatever they are. At the same time, we simplify the gamut of HR tasks, ranging from hiring practices, to time and attendance or to payroll processing. There’s a reason our customers rave about us. Learn more—take our quick 2-minute tour.