Drug testing for marijuana has never been an exact science. There is no consensus on what level of marijuana in the bloodstream constitutes intoxication. Unlike alcohol, employees who used marijuana weeks ago or longer can still test positive. These uncertainties raise questions over employers' reactions to situations where they suspect an employee to have been using or be under the influence of marijuana at work. These suspicions may arise from odors, the employee’s behavior or appearance, or the discovery of marijuana or associated paraphernalia in the employee’s work area. What options does an employer have to address its suspicions?

The first instinct of employers in these situations may be to send an employee for a drug test. However, as stated above, a positive test for marijuana does not mean that the employee was intoxicated at work. In a growing number of situations, employees claim that the positive test resulted from their use of legal hemp-based products outside of work. Given these uncertainties, can employers take disciplinary action against employees suspected of using marijuana at work without conducting a drug test?

First, the company’s drug testing and use policy should make clear that it may take disciplinary action whether or not it requires a drug test. Supervisors should be trained on the basis for reasonable suspicion of drug use at work, and their observations should be documented and confirmed by a second trained individual. The company should consistently apply this policy, and not pick and choose certain employees for testing while taking action against others without the benefit of such test.

In most circumstances, employees cannot base a legal claim on the fact that the company took disciplinary action against them without relying on a drug test. Even if the employee alleges that the investigation’s conclusions were in error, a reasonable review of and conclusions regarding likely drug use at work does not create a cause of action against the company simply because the decision was allegedly wrong.

Some employers are more comfortable with holding off on disciplinary action until they have a confirmed, positive drug test. A positive test may also impact an employee’s ability to claim workers' compensation insurance benefits following an accident. However, companies are not legally required to condition their ability to take appropriate action based on the employee testing positive. 

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