Changing marijuana laws have complicated decisions that once seemed straightforward for employers. During a recent Risk Control Webinar, Brian Feeley, Senior Vice President at Current Consulting Group, explained how state requirements, testing methods, and supervisor training shape drug-free workplace programs.
Feeley framed the issue as a business decision for each employer.
“Marijuana is here to stay,” he said.
Continue reading to learn how employers can review their programs while accounting for workplace risk, testing options, and changing legal requirements.
Feeley emphasized that marijuana policies should account for legal requirements and workplace safety. A 2021 National Safety Council survey found that one-third of employees had observed marijuana during work hours. Among employers that had eliminated THC testing, more than half reported an increase in incidents or other workplace performance concerns.
Employers should consider whether ending marijuana testing could increase exposure to negligent hiring or retention claims, particularly when an employer knew or should have known an employee posed a workplace risk, said Feeley.
Feeley encouraged employers to treat testing as an ongoing policy decision rather than a one-time choice. His recommendation for policy review was direct: “It should be looked at annually.”
According to Feeley, a drug-free workplace policy should clearly define:
Employers should update policies when laws, business locations, or management expectations change.
Training must support that policy. Supervisors should learn how to recognize and document possible signs of impairment without diagnosing a medical condition. Employees should understand the policy, the testing process, and the organization's expectations before an incident occurs.
Employers can choose from several types of drug testing based on the purpose of the test. Pre-employment testing may deter applicants who use prohibited substances, while random testing provides an ongoing deterrent. Reasonable suspicion and post-accident testing help employers respond to immediate workplace concerns.
Choosing the appropriate approach also requires employers to consider the specimen type. Urine and hair tests generally detect substance use over longer periods, while oral fluid tests offer a shorter detection window that may better indicate recent use.
Feeley compared the selection process to following a recipe. "Choosing the right testing technology is like making sure you've added all the right ingredients to your recipe for a successful program."
Drug testing requirements vary widely, particularly for employers operating in multiple states. Some jurisdictions limit pre-employment marijuana testing, require accommodations for medical marijuana use, or restrict discipline based solely on a positive result. Feeley emphasized that these protections generally do not extend to possessing or using marijuana in the workplace. They also do not permit employees to work while impaired.
Employers should review federal, state, and local requirements, then use state-specific addenda rather than relying on a single blanket policy. They should also consult qualified legal and compliance professionals before changing testing practices or taking adverse employment action.
An effective program connects written policy with employee education, supervisor training, appropriate testing, and access to support. Regular reviews help employers address legislative changes, new testing technologies, and emerging workplace risks.
Feeley's main message focused on preparation. Employers can strengthen their programs by reviewing policies, training supervisors, and selecting testing methods that align with their business needs and legal obligations. Consistent decisions and documentation can help organizations address marijuana-related workplace concerns before an incident occurs.
This presentation was part of Captive Resources’ Risk Control Webinar Series — regular installments of webinars to educate the group captive members we work with on topics like workplace safety, organizational leadership, and company performance. The thoughts and opinions expressed in these webinars are those of the presenters and do not necessarily reflect Captive Resources’ positions on any of the above topics.
