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Drug testing contractors used to be fairly cut and dry. Generally, if a contractor tested positive, you could terminate them or rescind a job offer based on that positive test.  Now with the legalization of marijuana in several states, contractor drug testing has become much more complicated for recruiting and staffing firms.

The laws

Before we get into that, let’s take a look at the actual laws.  The only states to allow the “recreational” use of marijuana are Colorado and Washington*. Another 20+ states allow the use of medical marijuana. State laws allowing medical marijuana vary with regards to what types of health conditions qualify, how much may be possessed, whether it can be grown in the home, and more.

It is important to note that marijuana use is still illegal on the federal level. Therefore, smoking pot is still against the law regardless of what state laws may say.  Despite that fact, use of marijuana does seem to be increasing. The Quest Diagnostics Drug Testing Index shows that the percentage of positive marijuana tests among American workers has increased by 6.2% in the past year. That rate has risen by more than 20% in both Colorado and Washington. In addition to state legalization, the increases are being attributed to the “relaxed societal views” of marijuana use.

Drug-Free Policies Upheld… For Now!

According to The New York Times, most employers are sticking with their drug-free policies despite the growing number of state laws allowing medical or recreational pot. Even in Colorado and Washington, many job ads specify that marijuana users should not apply. When Colorado legalized the drug, 71% of employers kept their drug-free policies, and 21% enacted even stricter rules.

So far, it looks like they will be able to continue enforcing these policies. Again, marijuana use is still illegal on the federal level. Furthermore, employment experts and attorneys agree that companies still have a right to have a drug-free policy that prohibits marijuana use.

However, this is subject to change. Courts across the country are hearing cases brought by workers who were terminated or disqualified as candidates due to their marijuana use. For instance, one pending case in the Colorado Supreme Court questions whether the state’s law against terminating employees for participating in legal activity outside of work applies to marijuana usage. Another case contends that the firing of a New Mexico medical marijuana user violates her state’s Human Rights Act that prohibits discrimination against people with serious medical conditions. And of course, the Americans with Disabilities Act has also been referenced in some cases. So far, the courts have ruled in the employer’s favor, but what will happen to drug-free policies if a future court decision favors the worker? Or what if the federal government decides to legalize the drug?

What if a Contractor Tests Positive?

For now, if you have a drug-free workplace policy and a contractor tests positive for marijuana, you still have the right not to work them. However, there are a couple of variables to consider. First, what if the contractor is using medical marijuana? As illustrated above, so far legal precedence allows employers to prohibit ALL uses of marijuana, but you could decide to allow it. If you are using a third party screening service, this is a little easier. They typically will ask a worker for additional information when a positive result is received.  If the worker produces a prescription for the drug, you as the employer will receive a negative result and will not be aware that the contractor uses medical marijuana.

As always, you want to make sure that your drug-free policy is clear and has been enforced consistently. If you do chose to terminate the contractor or rescind a job offer due to a positive marijuana result, it is important that you follow the proper procedures under the Fair Credit Reporting Act (FCRA).

As more laws are passed legalizing marijuana, this issue is only going to get more complex.  It is important to keep this on your radar so you are up-to-date on the latest developments.

Want to Avoid Issues with Drug Testing Contractors?

Keeping current on drug testing guidelines and regulations can be stressful and exhausting. Why not let FoxHire’s contract recruiting services handle it for you? Our back office support solutions will handle the administrative tasks involved with contract workers so that you can worry about recruiting and clients can worry about worker productivity and their bottom line.

*UPDATE 11/7/2014: Voters in Oregon, Alaska, and Washington D.C. approved measures to legalize the use of recreational marijuana in the November 4 election.

This general summary of law should not be used to solve individual problems since changes in fact situation may require a material variance as to the applicable law.  This article is for information purposes only and should not be construed as legal advice.

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