By Nathaniel M. Glasser and Anastasia A. Regne

As Cannabis Business Executive readers are undoubtedly aware, there is a growing acceptance of marijuana use throughout the United States. The numbers certainly speak for themselves. The 2017 National Survey on Drug Use and Health found that one in five adults in the United States have used marijuana, including 15% in the prior year, and 22.1% in the prior month – up from 20.8% in 2016.

Support for the legalization of cannabis continues to grow, too. In a 2018 Pew Research Center survey, 62% of U.S. respondents said that marijuana use should be legal, whereas only 31% supported legalization in 2000. State laws have responded to this trend: 33 states and Washington, D.C. have legalized medical marijuana; 10 states and Washington, D.C. allow both medical and recreational use of marijuana; and some states permit (limited) use of products with low levels of tetrahydrocannabinol (THC), while others permit only products containing cannabidiol (CBD). Some states, most recently New York and Hawaii, have also decriminalized the possession of small amounts of marijuana.

So – how does this support for cannabis impact employers’ drug screening policies?

What’s Required of a Workplace Drug Screening Policy

There is no comprehensive federal law that regulates drug testing in the private sector. The majority of states, however, have some sort of express regulation regarding drug screening, and employers must be sure to comply with the restrictions in each of the jurisdictions in which they operate. Employers who choose to drug test must first determine whether employees must be given notice of the intent to drug test.  12 states require a written policy and/or advance written notice of drug testing. In Minnesota, for instance, an employer that chooses to drug test must not only maintain a written drug testing policy, but must also test all applicants for the position subject to the drug screening. State laws also typically mandate who may conduct drug tests (usually only qualified testing labs), procedures after a positive test (such as whether the applicant/employee must be notified and/or given an opportunity to re-test), how the test results may be used by the employer (for example, for discipline or termination), and who pays for the test (typically the employer). 

State laws often regulate the time at which drug testing is permissible. Companies may want to test employees during the pre-employment screening process, after a workplace accident, when the company has reasonable suspicion to believe that an employee is intoxicated, or even randomly. But this is where employers should be most cautious – states vary as to the requirements and restrictions of employers’ drug testing practices. While pre-employment drug screening proliferates, employers should be aware that many states – including Alabama, Maine, Minnesota, Ohio, Oklahoma, Vermont, Washington, and the District of Columbia – prohibit such screening until a conditional offer of employment has been made to the applicants. 

In addition, employers must be careful to comply with state and local laws that govern cannabis use specifically.  For instance, New York City recently passed a law prohibiting pre-employment drug screening for cannabis or THC, and Nevada became the first state to bar employers from rejecting a job applicant because of a failed marijuana test.  Many other states, including Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, Oklahoma, Pennsylvania, Rhode Island, and West Virginia, expressly prohibit discrimination against certified medical marijuana users. New York mandates that employers have a duty to reasonably accommodate an employee who uses marijuana, and relies on an underlying health condition to justify the use. New Jersey’s high court just took up a case regarding the issue of reasonable accommodation, and may be the next state to impose such a requirement on employers.

While no federal law governing all drug testing in the private sector exists, the U.S. Department of Transportation (DOT) has comprehensive regulations covering transportation employers, safety-sensitive transportation employees, and service agents.  Employers covered by the DOT regulations may take adverse action against employees who test positive for cannabis, even if those employees live and work in states in which cannabis is legal.  Additionally, government contractors are covered by the federal Drug-Free Workplace Act of 1988, which requires contractors to agree to provide drug-free workplaces as a precondition of receiving a contract or grant from a federal agency, but which does not actually require the drug testing of applicants or employees. 

General Considerations

When designing or revamping drug testing policies, companies should be mindful not only of their legal obligations but also the impact on the talent pool. As acceptance of marijuana use and support for legalization continue to grow, companies that screen for marijuana should consider how testing will affect recruitment and retention efforts. Thus, companies should assess how they treat marijuana users, as well as whether and how their competitors utilize marijuana testing.

Beyond talent considerations, companies must consider whether to take a uniform or state-by-state approach to testing.  Fewer companies are enforcing zero tolerance policies. While some companies refuse to employ individuals who test positive for cannabis, many are choosing to accommodate use, even in states that do not require it. In such cases, employers should ask marijuana users about the frequency and time of use to determine whether it can effectively and safely be accommodated.  Where use appears to interfere with on-the-job performance, employers may consider imposing testing as part of a “last chance” agreement for an employee.

Best Practices

Given the patchwork of state and local drug testing laws, with the overlay of the federal prohibition against marijuana use and the DOT regulations, employers should carefully consider whether to implement jurisdiction-specific policies for each location in which they operate, or create a “one-size-fits-all” policy that complies with the most liberal drug testing laws. Once the design strategy has been decided, employers should consider the following best practices:

• Drug testing practices should be applied consistently, especially if applicable law prohibits discrimination against certified medical marijuana users or requires accommodation.
• If there is a duty to reasonably accommodate medical marijuana use, the employer first should engage in a fact-based inquiry to determine whether the individual is a permitted medical user. If the individual is a permitted user, the employer next should engage in the interactive process to determine whether medical marijuana use can be reasonably accommodated in the workplace. Note that some jurisdictions have stricter requirements than the interactive process; in New York City, for example, employers must engage in a “cooperative dialogue.”
• Employers should provide notice and obtain consent from an applicant or employee prior to testing.
• To ensure maximum compliance, drug testing should be conducted afterthe company provides a conditional job offer.Additionally, the screening should occur prior to the start date, so that any positive test can be addressed before the individual begins work.
• If an employee drug test comes back positive, consider possible obligations under disability discrimination and medical marijuana laws.

Remember, no matter the law or policy, employers never need to accommodate all marijuana use.  First and foremost, employees cannot be impaired while on the job; thus, any marijuana use that causes an individual to be under the influence while at work does not need to be tolerated.  Additionally, most states still do not require accommodation for recreational users.