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Marijuana use and drug testing policies in South Carolina’s workplaces

As the legal use of recreational and medical marijuana spreads across the states, employers and employees grapple with how to handle company policies that ban employees' use of marijuana. Unlike some substances, marijuana can be detected in the user's system for weeks past the use. So, while South Carolina residents may travel to states where recreational marijuana is permitted, South Carolina employers may retain their policies banning certain activities, including marijuana use.

Drug-free policies in South Carolina workplaces
Employers can, and should, have employee handbooks. A well-written handbook will let employees know what is expected of them, including behaviors that may result in disciplinary action. Frequently, these policies ban the use of illegal drugs, prescription drugs without a prescription or the consumption of alcohol on the job. While some occupations, like commercial truck driving, require testing for substance use and abuse, drug and alcohol screening may not be appropriate or desirable for every employer.

Contents of a drug-free policy
If an employer chooses to require drug testing, the handbook policies should be clear on when testing is permitted or required and what substances are prohibited. Certain times may be more appropriate to test for drugs than others, such as pre-employment, after any workplace incident or accident, prior to a promotion or testing may be conducted randomly among all employees. In addition to when to test, an employer must decide what substances to test for and what is prohibited.

A basic six-panel test looks for THC (in marijuana), cocaine, opiates, amphetamines, PCP and ecstasy. Many employers test for additional substances, such as alcohol, methamphetamines, or prescription drugs like barbiturates, benzodiazepines and methadone.

Must a South Carolina employer allow medical marijuana use?
More than two dozen states now permit the use of medical marijuana. A few of these states restrict employers from firing employees who use medical marijuana unless the employee is shown to be impaired on the job. However, medical marijuana remains illegal under federal and South Carolina law, and it remains permissible for a company to ban employees' use of pot, even for medical purposes in South Carolina. Do not be concerned about the American's with Disabilities Act requirement for a reasonable modification for disabled workers, either, as that requirement does not extend to illegal substances.

Consequences for employees
Employers might consider the consequences to employees who violate a drug policy as increasingly more employees find themselves subject to disciplinary action or termination after use of marijuana in a state where pot is legal but it remains against their employer's policy back home. Employers may adopt a zero-tolerance policy where any positive result of the use of a controlled substance without a valid prescription results in termination. Alternatively, employers may remove the employee from duties where safety is a risk until the employee passes a drug screen. In any event, the employee handbook should be clear in identifying the potential consequences for employees who violate the substance use and abuse policy.

Gignilliat, Savitz & Bettis, LLP provided this article. It should not be considered legal advice. Cities and towns should consult their legal counsel.

These human resources challenges and others will be featured at a breakout session at 3 p.m., Thursday, July 20, at the Annual Meeting.