Off-Duty Marijuana Use

A few of our clients, in states where recreational use is now legal have asked us to remove marijuana from the panel of drugs for which they test. Maine has effectively prohibited testing a person 21-years of age or older for marijuana, pre-employment with the exception of federally mandated testing. However, the Maine Department of Labor has stated that probable cause (i.e., reasonable suspicion) drug testing for marijuana still is permissible, because the recreational marijuana law allows employers to discipline employees who are under the influence of marijuana in the workplace. The problem is, unlike a test for alcohol, testing positive for marijuana doesn't prove a person is "under the influence" at the time of the test. It is not possible to learn from a drug test result whether marijuana was consumed outside the employer's property, or if the person is currently under the influence because marijuana can stay in the human body for days or weeks, long after the "high" is gone.

Two take-aways from this in our opinion:

1. Know the laws in your state. They are changing quickly. Consult with an employment law attorney knowledgeable in this area.

2. It is more important than ever to have a solid employee handbook and to document poor employee performance and other prohibited behavior.

Supervisors should receive training on recognizing the signs and symptoms of marijuana use including decreased productivity and focus, bloodshot eyes, slurred speech or having a distinct odor on one's breath or clothes. Supervisors should know how to address potential on-the-job use and identify signs that an individual is under the influence while at work. Remember that employees may be disciplined or terminated for performance issues where the employee physically cannot perform his or her job duties based on drug use or other factors.