Q: We know marijuana can stay in a person’s system for a long time, and are most concerned about preventing employees from coming to work impaired by marijuana. Can we change our Drug and Alcohol policy to prohibit “impairment” at work rather than “any detectable level”?
A: Currently, unlike with alcohol, there is no reliable way for an employer to detect impairment of an employee using marijuana. As marijuana use becomes more widespread, there is a growing demand for reliable and effective ways to test impairment. A recent Oregon Public Broadcasting news article explains that a University of Washington lab is researching the possibility of a breath test for THC and that other organizations are looking into other options such as cheek swabs. Currently, police departments utilize specially trained officers to detect impairment and may have options such as blood tests to measure THC in a persons system, but those options are expensive and time-intensive. Even though the work on new testing methods has started, experts expect it will be years before a reliable and defensible testing method exists. In the meantime, it is safest to stick with your any detectable level standard.
Make sure to download a copy of our Marijuana in the Workplace Legal Guide for more information on federal and state laws in California, Idaho, Montana, Oregon, and Washington. Our employment attorneys provide practical advice on how to handle workplace issues associated with marijuana use , such as knowing what to do if an employee tests positive for marijuana use or understanding when medical marijuana intersects with the federal Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA).