Pot legalization presents challenges to employers, workers

Posted on Jan 30, 2020 :: Commentary
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Posted by , Insight on Business Staff Writer

While there may have been a rush to Wisconsin’s southern neighbor on Jan. 1 when marijuana became legal to purchase and use in Illinois, the development poses some unique challenges for workers and employers in the Badger State.

“The main thing for people to know is that it is still illegal to use marijuana in Wisconsin,” says Terri Dougherty, editor of J. J. Keller & Associates’ Everyday Drug and Alcohol Program Management manual. “If you buy it there, you need to use it there. If your employer or prospective employer does a drug test and finds it in your system, you will have to face the consequences.”

As for what those consequences are, it varies from employer to employer. Dougherty says Wisconsin businesses can determine their own drug policies — except for any federally regulated fields, such as commercial drivers. Since marijuana is illegal on a federal level, someone testing positive for any drug needs to be removed from the position immediately.

“Wisconsin has very employer-friendly laws. Employers may decide to do nothing if there’s a positive test for marijuana or another drug, but others may have strict policies in place that say a positive is an automatic termination or suspension,” Dougherty says.

And unlike alcohol, which exits the body over a period of several hours, marijuana users can test positive up to a month after their last usage. “You can travel to Illinois over the weekend and legally use there. On Monday, you head back to work and don’t feel any signs of the ‘high,’ but if you are tested, it will come back positive,” Dougherty says.

Dougherty says some employers are backing away from doing a pre-hire drug screen because they are worried about finding prospective employees who can pass the test in the current tight labor market, but “they may say, ‘We’ll test in 30 days’, giving the new hire a heads-up to stop using, if they are.”

With so many states making marijuana legal for either recreational or medicinal usage, it’s probably only a matter of time before Wisconsin goes down that route. The state legislature already has a few bills on the topic, and Gov. Tony Evers has expressed support for decriminalizing its use. This means employers may need to start thinking ahead about their own rules regarding marijuana use: Will they continue to test for it on a random basis or as part of a pre-hire procedure? Or only test if an employee is showing the signs of being under the influence? It’s a decision they may have to make very soon.