How are small businesses addressing project bids that require employees to test for Marijuana?

Written by Lucas Kibby, CleanFleet

Have a Non-DOT workforce that could be working on a contract basis?

Small businesses tend to not have an extensive pre-employment or random drug testing policy in place when they first start out.

But what happens when this small business chooses to bid on a project for a regulated private company or government agency that requires the employees involved in the project to have been drug tested?

A Real Life Example

If you are a subcontract you are already aware that many general contractors require a bidding company to have a drug testing program that follows federal standards, which includes testing for marijuana.

Let’s say you are a Painting Company in Oregon who wants to apply for bid to paint a school. The bid requires all your painters on the project to pass a drug test.

Since your company does not have a pre-employment drug testing policy, you decide to test your employees for this project. What happens if 50% of those painters don’t pass?  The company loses the bid and then must decide what to do with the painters who failed the drug test. Do you keep them on to potentially lose another contract bid down the road?

The state Supreme Courts in Washington, Oregon, California, Montana, and Colorado have ruled that employers can terminate employees who test positive for marijuana. Decisions in lower courts and in other states have almost always sided with employers who want to have a drug-free workplace. Read more about Oregon’s State of the Marijuana Industry.

Most of the time, small businesses will have to respond quickly in these contract situations – which means they may miss out on business opportunities. How can you predict what is going to come up in the bid requirements?

What these small businesses should consider

There are many things to consider when creating a company drug testing policy for your workforce. At a minimum, organizations should establish a clear policy on what is unacceptable behavior in the workplace, specifically being under the influence during the scheduled work day and what the repercussions are when the policy is violated.

This policy must include when drug testing will or may be performed, such as pre-employment, randomly of all employees or safety sensitive employees, when there is reasonable suspicion that an employee is under the influence during work hours.

For more details on what your drug and alcohol testing policy should look like in 2017, click here.

If you do start a drug testing policy, be prepared to know how you will respond if a tenured employee tests positive. A company could avoid having that employee participate in work for the proposed project, there could be a corrective action or discipline, or the company could provide support for treatment and recovery.

Remember, over 65% of all accidents on the job are related to misuse of drugs or alcohol, costing companies millions of dollars each year in employee turnover, absenteeism, productivity loss, and workers compensation costs.

An Oregon Senate Bill Is Trying To Stop Companies From Having A Blanket Ban On Marijuana Users

A bill introduced on January 7^th in the Oregon senate would mean companies can’t not hire if pre-employment drug tests for cannabis use was positive or a company could not fire a non-safety sensitive function employee for at-home casual use of marijuana – but companies could still require treatment that the employee pays for.

Senate Bill 301 states, “It is an unlawful employment practice for any employer to require, as a condition of employment, that any employee or prospective employee refrain from using a substance that is lawful to use under the laws of this state during nonworking hours, except when the restriction relates to:

• A bona fide occupational qualification; or
• The performance of work while impaired

According to OregonLive.com, this bill would make marijuana use legally similar to tobacco use, meaning as long as consumption doesn’t happen during work hours or interfere with work duties, it would be illegal to fire someone or not hire someone based on casual use.

This rule, which is unlikely to pass but is interesting to watch in the years to come, would greatly affect companies that bid for projects that require testing because it would be much harder to build the best team to work on projects as you may have to move more qualified employees off the project (couldn’t fire them) and either find the money to hire additional clean staff or deal with less qualified employees on the project.