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A recent survey finds that 10 percent of U.S. workers have gone to work while high on marijuana.
In addition, 3 percent of respondents say they've gone to work under the influence of a drug other than marijuana, and 28 percent under the influence of a prescription drug, according to the Mashable/SurveyMonkey survey of 534 Americans.
While these self-reported figures aren't authoritative, they should give you pause. Does your company have a drug policy? What does it cover? And, importantly, does it comport with state laws?
With marijuana legal in Washington and Colorado, an interesting question emerges: What happens if an employee tests positive for THC, marijuana's active ingredient?
THC is fat-soluble, so it can linger in the body for as long as 30 days. That means when an employee tests positive for THC, he could be high right now -- or, he could have smoked weeks ago. "If you had a martini on Saturday night, or smoked pot on Saturday night, but you're fine on Monday morning, how is Saturday night the employer's business?" Deborah Keary of the Society for Human Resource Management told NPR.
Generally, it's OK to drug test potential employees. But once a person becomes an actual employee, the calculus changes.
Every state is different. Some states don't allow random testing, requiring the employer to articulate a specific reason for testing an employee. Other states allow random testing only if the employee's job is safety-sensitive. Oh, and be forewarned that even municipalities have their own laws; San Francisco, for example, further restricts drug testing on employers operating in the city.
In the Mashable survey, 28 percent of employees reported having gone to work "under the influence" of a prescription drug. That's a vague phrase, but on the outside, what can be done about it?
The answer: not a whole lot. The Americans with Disabilities Act comes into play on this one. The ADA prohibits a "disability-related inquiry," which can include asking about an employee's prescription drugs. Under limited circumstances, employers can ask employees about prescription drug use if those medications might affect their job functions. The EEOC notes that illegal use of prescription drugs isn't covered by the ADA -- but good luck making that determination on your own.
The moral of the story is that, if you want to be certain of a drug-free workplace, it's best to test everyone when they apply, because at that point they really have no vested interest in their job (they can take another one). Once they're employed, though, it can be perilous to conduct drug tests without a very good reason.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.