Drug Testing in WA and CO

Just wondering:

With the legalization of pot in some places, are employers there backing off on that particular analyte as a condition of employment? I believe that since substance use (legal or not) is not a protected class they don’t have to hire people who do, but on the other hand, now that it’s legal, perhaps they’ve decided that they don’t really care?

I am sure that there isn’t one answer, but I would be curious to know what the Dopers have seen regarding this.

I remember when I was a very young supervisor, working at a large multinational company during the dot-com boom years. We were watching many of our entry level professionals take 6 month certificate courses in IT and leave for 2x what we were paying them. One of the areas this company worked in was developing drug tests, and many companies were backing off of marijuana use as an employment disqualifier. The labor market was so tight, that companies were deciding that pot wasn’t so bad, and didn’t want to have to decline a candidate over it.

Nothing has changed at my place of employment, a large aircraft manufacturer. The only employees besides new hires that are drug tested without cause are those that work on flight ready aircraft and those that belong to the Teamsters Union, they are generally those that truck and forklift drivers. The drug testing for those is covered under federal, not state requirements. For others, there is still a zero tolerance policy in place. Those that get injured on the job or those that violate safety and welfare policies are also drug tested. And for someone like me that hit an airplane with a ladder and caused $20,000 in damage, I was tested for not only illegal drugs, but legal drugs. Boeing has a list of legal drugs that employees are not allowed to use while at work. I was sent home for 4 days a few years ago because of the pain medication I was given for shingles. Many other companies have made it known that their drug policies have not changed because pot is now legal.

It should be noted that even if marijuana were to become legal under federal law the only change companies in most states would need to make to their testing policy would be to explicitly list marijuana instead relaying of wording along the lines of “illegal substance”. Many employers test for nicotine now, and IIRC Missouri is the only state that actually has a law preventing employers from taking action against workers for using legal substances off the clock (even that doesn’t apply if they show up to work under the influence).

Nope. My workplace went to far as to send out a memo, which remains posted on the bulletin board to this day, stating that they will continue to randomly screen employees for marijuana use and summarily fire anyone who tests positive.

Even prior to the passage of the law permitting marijuana use in CO and WA, most companies already had policies prohibiting employees from being impaired while at work. Impairment is most often defined as being under the influence of legal or illegal drugs, or alcohol. Because alcohol was already legal, as were prescription drugs, the change in the legal status of marijuana really didn’t matter as far as employment practices were concerned. The change in law merely moved marijuana from one category of impairment (illegal) to another (legal, but not allowed).

Several test cases have been brought before the courts here in Colorado, and all have failed. Even those concerning medical marijuana.

No, over half the states have laws preventing employers from discriminating against employees for consuming legal products and/or participating in legal conduct.

The reason they still may test for nicotine even if the state has a law protecting off work smoking has do with insurance rates. They still can nail an employee for higher premium contribution if they smoke.

Thanks for the thoughts and input.

Just in case it wasn’t clear, I would presume that being intoxicated at work would remain against policy- same as alcohol.

I was mostly curious about pre-employment and random testing.

My employer plays hardball with illegal drugs (and some legal drugs, too) and shows no signs of changing.

So says my federal employer.

Sorry to have misinterpreted your original question. Yes, at least in the company I work for, a positive for THC on either a pre-employment screening or a random would disqualify you from being hired or continuing your employment. Some companies are a little more lenient with current employees, allowing them to enroll in a rehab program after a first offense on a random, but my company’s policy is very black and white.

Again, suits have been filed here in CO due to the tendency of THC to stay in body for up to 2 weeks after use, meaning that random taken today could indicate usage 10-12 days previously but not while at work, but in every case the suits have been defeated.

As long as so much of employment law is governed on a federal level, I don’t think changes in state law will make significant changes in how pres or randoms are utilized in determining the employment relationship. Part of this could also be attributed to the ‘at will’ status of employment in Colorado which allows companies to use almost any criteria not in a protected class to be grounds for employment denial or dismissal.

The issue at the heart of the matter is still the Federal Drug Free Workplace Act of 1988. It establishes guidelines and requirements that some contractors and organizations doing business with the federal government, and individuals who receive federal grant money, set up a drug free program in order to continue to do business or receive money. That covers a lot of businesses.

The actual programs companies set up can vary widely in practice and design, there is no mandated right way, there are only guidelines. Some companies go hard line and do random testing and some only mouth the words and institute a program that meets the guidelines. It is all about having the proper statements published and distributed to the employees. It’s a HR thing. Here is a brief summary of the guidelines from the Dept of Labor. Note that no where is random drug testing mentioned, and many companies stop after the initial pre-employment test. If you can’t stop smoking pot for two weeks in order to get a job it is probably an indication not to hire you.

http://www.dol.gov/elaws/asp/drugfree/require.htm

There are occupations that are required to random drug test, such as a commercial driver’s license and there are other hazardous industries where companies just decide to random test for insurance reasons.

Some companies do the pre-employment test and then never bother to follow up with any randoms. Of course the wording of the drug policy usually states that it could happen for reasons of excess absenteeism, bizarre behavior and other indicators of substance abuse, but those apply anyway.

Someone will attach a rider to an obscure congressional bill about farm subsidies or something that will amend the Act to exclude pot. That is how you get things done in DC.