Employers continue to question how to handle marijuana legality during drug testing

Alaska officially legalized recreational use of marijuana for citizens that are over the age of 21. However, employers in the state — and in fact, across the country in other states in which recreational or medical cannabis is used — find that they are not sure how to handle employee drug tests when the drug in question is no longer illegal. Alaska has a large number of jobs in oil, gas, transportation and similar fields, where safety is of the utmost importance, and so of course employers are concerned about employees arriving to work impaired. But it may take some individuals taking their cases to court before it is determined how far employers may go in reprimanding or even firing employees for marijuana use, when it is on the employees’ own time and is not affecting the ability to work. Similar problems have arisen in Colorado, and at least one court case has found its way to the state Supreme Court. There is also a precedent in Alaska from a state Supreme Court case in 1982, that employees may be fired for failing drug tests provided there is a “nexus between the use and the work.” Neither state, nor any of the others that have legalized medical or recreational marijuana, can take cues from federal law, as marijuana usage is still illegal at the federal level. The legislation that allowed marijuana legalization to be voted on in Alaska — ballot measure 2 — stated that “[employers] have the right to make up their own rules about cannabis use.” Of course, it goes without saying that disciplinary action may be taken against an employee who shows up to work under the influence of any drug or alcohol. “Alcohol is legal, but I imagine most jobs, if you show up drunk, you’re getting fired or disciplined,” said Jason Brandeis of the University of Alaska Anchorage’s Justice Center. The issue with drug testing for marijuana is that traces of cannabis can remain in one’s system for days or even weeks after use, so it can be difficult to determine when the drug was actually used. One human resources consultancy has begun teaching classes for employers about how to create drug-testing policies that make it clear what company expectations are regarding drug use. Other employers think existing drug policies are still fine and should be left as-is.]]>