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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