Retail Observer

RETAILOBSERVER.COM JUNE 2019 62 S ince 1989, when the Supreme Court upheld the right of business owners to drug-test their employees, there has been a great deal of debate over the practice. The debates are sure to continue, now that some states are changing their laws regarding marijuana use. The most hotly debated issue is whether marijuana should continue to be included in the drug screen panel, and if so, whether an employer should take action when an employee tests positive. The issue is made more complex in states that have legalized marijuana for recreational and medical use. Meanwhile, the federal government has not legalized marijuana at all. What does this mean? Basically, it means that the states have the right to decide whether to legalize marijuana use within their borders. Some states have chosen not to legalize, while others have legalized marijuana for medical use only, and still others have legalized recreational use. Some states criminalize possession while some have decriminalized possession (with guidelines), and others have legalized it with stipulations. Drug screening is legal in all states, and companies have the right to decide which actions they will take in the event of a positive test result. Some companies are offering recovery services instead of termination. This approach may let the company keep a valued employee who may simply need help. Other companies are choosing to disregard positive results as long as the usage doesn't affect the workplace. But many companies have continued to have a zero-tolerance policy. It is the employer's right to terminate employment or rescind a job offer after a positive test result. This right has, of course, been challenged in court. In 2012 a Minnesota court heard a case involving the withdrawal of a job offer based on a positive pre-employment screening result. The employee claimed that the test result fell below the testing lab minimum conservative levels for the substance, and therefore should not be considered by the employer. The Minnesota Court of Appeals upheld the dismissal of his case by the lower court. SORTING IT ALL OUT Every employer should make its written drug testing policy available to each employee, as it will enable the employer to state its policies in clear detail, and announce any action that may be taken upon a positive test result. Thus employees should not be surprised by the company's actions when a screen comes back positive. Companies should keep a signed copy of the policy document in the employee's file for legal reference. Your company should also obtain a consent to test, to be included in the employee's personnel file. It is illegal for employers to test employees without their knowledge, for example by testing hair samples. It's important to educate yourself about your state's laws as they pertain to drug screening and hiring. They are bound to change along with our country's attitude toward marijuana, so it's important to stay informed about the latest changes. Make a plan. Know what you can and cannot do. Explain the process to prospective and current employees. Let them know how your company will respond to a positive test. Whatever you decide, make your policy clear, and make sure it's enforceable in your state. Be aware of the ongoing changes in screening technology, especially those intended to combat synthetic urine. Synthetic urine is widely available for purchase, with instructions on how to smuggle it into a testing facility. (Smuggling devices are sold online, even though they have been banned in Indiana and New Hampshire.) These issues will continue to be addressed in each state. Drug screens are one method of ensuring that your company and your customers are protected. It's your responsi- bility to make sure you're using them properly. S E R V I C E D E P A R T M E N T Renee Galioto is co-owner of Island Appliance Repair in Wilmington, NC. Renee and her husband Patrick have ten technicians covering three counties and have served this coastal community for more than twenty-five years. RO HOW DRUG LEGALIZATION MAY AFFECT COMPANY DRUG SCREENING POLICIES

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