Over the years, most employers have implemented policies that prohibit the use of illegal drugs during work hours or while on work-related business. Many other employers have made drug testing part of the standard onboarding process for all new employees. With the legalization of marijuana in some states, a difficult conflict exists regarding the applicability, enforceability and wisdom of those policies as they regard employees who may use marijuana legally. First, an employer should pay special attention to the specific language within its drug use and testing policies. Second, employers would be wise to pay special attention to what goals they are trying to accomplish with their policy. Third, the employer should consider carefully its willingness to discipline employees who may use marijuana off the clock or while not on company business. Finally, if drug testing is a part of the management of their workforce, employers should take special steps to ensure that the policies are compliant with local drug testing laws, and that the policies are uniform in application so as not to trigger unwanted scrutiny from the EEOC or other regulatory agencies.

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