Legal or not, Wisconsin contractors have robust policies in place for marijuana testing

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Despite interest from local lawmakers and legalization in 33 states, Wisconsin contractors still have strict testing policies when it comes to marijuana on or off the job.

In January, Republican lawmakers pitched a bill to make medical marijuana available to people with certain conditions ranging from epilepsy to terminal illnesses, with state-run dispensaries as an included caveat. The bill had a lukewarm reception from both political camps in Madison and from the governor before the legislative session ended, leaving the proposal dead.

But legal marijuana is still popular and accessible for most Wisconsin residents. Eighty-six percent of Wisconsinites across party lines said they wanted legal weed at least for medical use, according to a Marquette University Law School poll. And more than half of residents who are 21 and older are within a 75-minute drive to a legal dispensary in another state, a Wisconsin Policy Forum report showed.

Illinois, Minnesota and Michigan recently made marijuana legal for recreational use, and Iowa allowed it for medical reasons. However, commercial contractors in Minnesota have condemned marijuana use on job sites.

The Associated General Contractors of Wisconsin and the Associated General Contractors of Greater Milwaukee don’t have policies that outright ban cannabis for its members but have agreements with their unions to test for THC — the ingredient that gives smokers the “high” feeling — and other drugs at random and after an accident.

AGC of Wisconsin members and their union partners signed up to the Substance Abuse Testing & Assistance Program (SATAP), a guideline for participating employers to screen for substance abuse.

“Drug abuse can jeopardize the safety of the employee, coworkers and customers. For this reason, the Association, the Unions and signatory contractors … are committed to ensuring a drug free workplace for every employee covered hereunder,” according to SATAP’s introduction. “Substance abuse by employees could result in serious mistakes in judgment and thereby compromise both the high quality of services and customers’ trust,” it added.

Tests can be taken from the saliva, urine, breath or blood, and can be done randomly after an accident or where there is “reasonable suspicion.” According to the document, reasonable suspicion happens when a worker behaves like they’re stoned or drunk, such as slurring their speech or showing hampered motor skills.

If a worker is found high or drunk on the job, they’ll be ineligible to work again unless they get reinstated. To do that, they must find counseling through their employee assistance program.

The Associated Builders and Contractors of Wisconsin, a widely non-union organization that represents small and mid-size companies, leaves drug testing up to the discretion of its members. However, its leadership expressed they have no tolerance for any substance abuse on site, regardless of whether legalization might happen in the future.

“We want our workers to show up clean, period,” said John Mielke, president of ABC of Wisconsin.

John Schulze, ABC’s legal and communications director, said each of their members has their own alcohol and drug policy.

“Supervisors are trained to look for impairment, whether it be from alcohol, or from over-the-counter cold medicine, or illness or from lack of sleep. If an employer has reasonable suspicion, they are allowed to test for drug use. The goal is to keep the workplace safe for employees and the public,” he added.

Wisconsin law states that employers can still enact zero-tolerance drug and alcohol policies in the workplace, even if an employee uses a drug legally outside of the state. Because marijuana is still illegal in the state and under federal law, it’s not protected under state fair employment laws.

Josh Levy, a partner at the law firm Husch & Blackwell, gave an example where an employee goes skiing in Colorado and gets high in the state where it’s legal, they can still get fired from their job in Wisconsin if they fail a drug test when they return.

“For employers, we advise to clearly have their drug policy in writing. Employers can adopt a drug policy that helps their workplace demands, including prohibiting marijuana use. They should communicate their drug policy, and if they’re doing screening tests, they should communicate when they’re doing testing and apply it consistently,” Levy said.

If a company wants to enact a drug policy, they should do it consistently, Levy added. For example, testing should cover both office and field workers and not just one group.