States Changing the Rules for Employee Drug Testing

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Legalization has far reaching effects. An example that becomes more and more prevalent is how medical and recreational legalization connects to workplace drug testing. Policies vary by industry, ranging from solely testing after an incident to regularly scheduled sampling to pre-employment drug testing. States that have legalized must consider this aspect, and clear guidelines for businesses streamline the evolution of procedures. Below is some current info regarding the world of cannabis employment drug testing.

Much like work-from-home options have emerged as desirable perks for employees, companies that do not restrict off-the-job cannabis consumption often receive favor. In a competitive market within a period of high inflation, perks not involving additional cost to a company are wanted as well. On the other hand, to protect against legal liability, employers remain responsible for sustaining safe, drug-free environments for workers.

While some jobs are specifically regulated by state and federal drug testing rules, the majority remain in a gray area, which allows interpretation and implementation of the rules at the preference of employers and the courts. This leads to inconsistency and what is seen as a no-win scenario: either allow the risks of an unsafe work environment due to known impairment issues caused by cannabis use, or potentially expose the company to wrongful termination suits.

Available pre-employment drug testing further complicates the problem as multiple studies show commonly used urine drug screens might indicate someone used cannabis days or even weeks ago. The issue with this determination being that impairment does not follow the same schedule, therefore impairment on the job cannot be pinpointed. To appease both employers and employees, some businesses have chosen to focus on impairment testing most exclusively when consumption is adversely impacting work. A wrinkle in this policy is how to implement this with personnel who are mostly remote, an option noted as growing in use.

In specific states, problems have emerged in the public realm. Within Pennsylvania, a schism is growing between employers and the more than 400,000 medical patients in the state. Although state law protects workers from being fired or denied a job due to doctor’s permission to use marijuana, the protection is unclear once cannabis is actually consumed.

“It essentially makes no sense,” Pittsburgh attorney John McCreary Jr., who represents employers.

Although the 2021 adult-use cannabis law in New Jersey specified employers cannot fire workers or suspend them based solely on a positive blood test, employers have been in limbo as the Cannabis Regulatory Commission has not completed the regulations determining how employers are supposed to identify impairment tied to cannabis in the workplace. The cannabis commission took an interim step Sept. 9, when it issued guidance on how employers can use physical and behavioral factors, such as agitated or insulting speech, glassy eyes, or excessive yawning, to determine if an employee is impaired from cannabis use while working.

In the state of Maryland, a pre-employment drug testing requirement for cannabis businesses has been removed as of Sept. 22. The new drug testing law allows individual dispensaries and growers to decide whether or not to test employees. The change was one of several approved by the Maryland Medical Cannabis Commission with an overall goal of lessening red tape for small business owners.

California drug testing laws are under review recently. A newly signed law prevents employers (excluding those with federal ties) from taking adverse action against an employee for cannabis use. Instead, adverse action against employees is only allowed when they are impaired in the workplace.

“It’s a bigger trend of moving beyond just legalizing marijuana, stopping arrests and stopping throwing people in jail for using it,” said Robert Mikos, an expert on drug law at Vanderbilt University. “It’s providing the same level of legal rights and protections for marijuana users that you have for users of prescription drugs, alcohol and tobacco. There are lots of statutes that already protect people for using other medications or for engaging in legal activities off the job,” he said. “So lawmakers might have thought other statutes would protect medical or recreational marijuana users. In a lot of places, that proved to be false.”

California drug testing laws for employers are under constant review, as well as legislation in other states with legalization completed or on the horizon.

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  1. Full Legalization on April 25, 2023 at 12:02 pm

    A common sense approach needs to be taken and soon. Many Americans will be affected by the changes to legalization. It is already being seen that employees favor businesses that make common sense a part of their policy-making with regard to addressing the use of cannabis. It would make sense to eliminate the gray areas and red tape – no panel testing for cannabis, adoption of “no drug testing” stated in job postings (remote) with further expansion to in-person positions for pre-employment ONLY, taking a stand by following the lead of State gov’t(s) to challenge federal law without increasing legal risk, etc.

    The issue with disability discrimination will one day affect employers when a suit is brought that seeks to challenge the status quo. For the consumer, things are moving too slow in a world that professes to protect Americans and ease the stressor of living in this country. No one appears to be on the same page to ensure no adverse effect on the tax payer who simply want a better life, free of persecution, hypocrisy, mistreatment, double standards (alcohol vs cannabis), legal risk traps, non-congruence or alignment, and the ability to be autonomous in the needs of our own lives. For a land that has freedom as a defining principle, many of us are being controlled in a way that continues to show itself unhealthy to the public good, safety and well-being of the Republic.

    Lastly, the Federal-level needs to get hot on national legalization and stop playing politics. We have already found from history ‘the why’ of placing a harmless weed on the CSA of 1970. It was not because of medical need but to criminalize/brutalize/stigmatize entire race(s) of people before another majority demographic consumed at the same rate but were unequally and disproportionately not criminalized as opposed to the former. For the gov’t to not enforce prohibition on the States, in which 21+ and growing have adopted legalization, it signals a duty to bend to the will of The People; just the same as the in the case of alcohol, a far more dangerous man made chemical.

    Unfortunately, several federal politicians have shown their true colors – greed, amassing power to themselves, special interests, overt racism, capitalism, control, cronyism – and continue to in-fight (red vs. blue) to comprehend the effect they have on the nation by being out of touch on the pulse of The People they serve. It’s sickening and will be our undoing if these appetites continue.

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