Structuring Workplace Drug Policies: Employer Pitfalls in the Age of Marijuana Legalization and the Opioid Crisis

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, August 14, 2018

Recorded event now available

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Program Materials

This CLE webinar will discuss current issues facing employers when drafting workplace drug policies, random drug-testing procedures, and post-accident drug-testing protocols in today’s landscape of marijuana legalization and the opioid epidemic. The panel will delve into the legal pitfalls facing businesses and their counsel, as well as practical strategies to maintain a drug-free workplace while remaining in compliance with the law.


More than half the states in the U.S. have legalized the use of medical marijuana (though using and distributing marijuana remains illegal under federal law), and the opioid abuse epidemic is gaining more attention. Employers should verify that their workplace drug policies contemplate new and changing prescription drug laws. Counsel should inform clients of potential interactions between an employment policy on workers’ use of such substances and ADA, FMLA or other legal requirements.

Some employers ask job applicants to submit to drug testing during the hiring process, and many would turn away candidates who test positive for marijuana. Employers may be better served by considering whether a candidate’s positive marijuana test result is a reasonable bar to employment. An employer may apply a higher level of scrutiny on drug use by candidates for safety-sensitive positions and bar impaired employees from work due to legal or illegal substance abuse.

Employers must be aware of the limitations of marijuana and opioid testing. While breathalyzers can reveal whether a worker is under the influence of alcohol at the time of the test, marijuana and opiate tests can only indicate whether the worker has used such substances in the recent days or weeks.

Available testing for marijuana and opioids does not differentiate between the employee under the influence at that moment in time and the employee who used such substances previously, while off-duty. Employers must navigate particularly tricky situations if the worker has a valid prescription to use these substances.

Listen as our expert panel discusses current national trends in marijuana and opioid use, the business costs of excluding potential employees for marijuana use, the science behind current marijuana and opioid testing, and best practices for structuring workplace drug policies that not only optimize a business’ workforce but maintain compliance with state and federal laws.



  1. Examining the impact of marijuana legalization and opioid use on the hiring process
  2. The financial impact of excluding potential employees based on positive pre-hire marijuana or opioid testing
  3. Scientific analysis of current marijuana and drug testing and the issues such testing presents for employers
  4. Interplay of state and federal laws, including the ADA and FMLA, in workplace drug policies
  5. Best practices for employers in structuring workplace drug policies and performing drug testing of employees


The panel will review these and other relevant topics:

  • What are the national trends in marijuana and opioid use, and how do they affect employers?
  • What are the risks of excluding potential employees based on marijuana use?
  • What are best practices for performing random and post-accident drug testing in the workplace?
  • How can employers maintain a drug-free workplace and remain compliant with applicable state and federal laws?


Goldstein, Mark
Mark S. Goldstein

Reed Smith

Mr. Goldstein counsels clients on a variety of workplace issues, including policy development and compliance, risk...  |  Read More

Zwisler, David
David L. Zwisler

Of Counsel
Ogletree Deakins Nash Smoak & Stewart

Mr. Zwisler’s broad range of labor and employment experience includes overseeing and conducting comprehensive...  |  Read More

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