By: Kayla M. Jacob
With marijuana now more culturally accepted and partially legal, employers may feel a bit dazed about workplace drug testing. Drug testing has historically been determinative of employment decisions, either as a pre-requisite for obtaining employment or a condition of continued employment. But with the legalization of marijuana, are drug tests a thing of the stone age?
There is no one-strain-fits-all approach to drug testing. Drug testing may be a thing of the past for some employers, while, for others, foregoing drug screening is impractical. Some employers may adopt a hybrid approach where testing for marijuana and its derivatives may no longer make sense, but testing for other illicit substances may still be necessary. Yet another approach is foregoing applicant or random drug testing but maintaining a post-accident testing program.
Whatever the approach, employers should consider the pros and cons and legal implications for revising its drug testing policies or programs. As part of this analysis, here are a few things employers may wish to consider when resolving the burning question of what to do about drug testing:
Check state and local laws.
Under Federal law, there is little restriction on drug-testing workers for marijuana as the drug is still federally classified as an illegal substance. However, some states, parishes, counties, and cities permitting the use of marijuana now have laws regulating marijuana drug-testing. Thus, the answer to whether a drug testing program is still right for your workplace may be embedded in a local ordinance or state statute.
In some jurisdictions (like Alabama, Florida, and Mississippi) although the use of medical and/or recreational marijuana may be lawful under state law, employers may still ban the use of marijuana by implementing and enforcing zero-tolerance drug policies and programs. These laws provide that employers are not required to accommodate or allow marijuana use. Generally then, an employer’s decision to deny employment or take an adverse employment action against an employee may be justified by a positive marijuana drug test.
Yet, other jurisdictions (like Connecticut, District of Columbia, and Nevada) restrict an employers’ right to test for marijuana or prohibit discrimination against employees who use marijuana in accordance with state laws. Prior to the enactment of these restrictive laws, employers could reasonably rely on a positive drug test to prove impairment and justify adverse employment actions regardless of whether marijuana was used at work or off-duty. Now, however, in some jurisdictions a positive drug test alone generally does not provide a valid reason to discharge an employee or otherwise deny any term or condition of employment. Justifying an adverse employment action based on marijuana use may, therefore, require employers to prove impairment, use or possession of marijuana while at work.
Some laws (like California’s law which takes effect in January 2024) may also restrict employers’ right to test for marijuana by limiting drug testing to certain components of marijuana. For example, testing for tetrahydrocannabinol, or THC, which is a psychoactive component of cannabis, may be permitted while screening for non-psychoactive components of cannabis, such as cannabidiol, or CBD, may be unlawful.
Still, some state laws are silent as to drug testing restrictions or obligations imposed on employers. For example, Louisiana imposes restrictions on public employers, but those restrictions do not apply to private employers.
To comply with state and local laws, employers may need to roll out revised drug testing policies and programs tailored to the specific requirements of the law in the jurisdiction in which it operates. Multi-state employers should craft policies that comply with the individual laws in each state and locale in which they operate.
Consider your industry.
Even if state or local laws do not restrict employers’ right to drug test employees, industry regulations may impose such restrictions. In some cases, industry regulations may provide stricter requirements than state or local laws. Thus, many state and local laws provide exemptions for employers that must comply with more stringent requirements.
Covered employers in trucking, railroad, aviation, pipeline, public transit, ships/vessels and other transportation-related industries must comply with the Omnibus Transportation Employee Testing Act. The Act was passed by Congress in 1991 to enhance safety standards of transportation industries by employing alcohol and drug testing programs to eliminate the abuse of alcohol and use of illegal drugs — including marijuana — whether on duty or off duty, by employees in safety-sensitive transportation positions. The U.S. Department of Transportation (DOT) oversees mandatory random drug testing and pre-employment screening for employees in transportation-related industries. DOT regulations include procedures for collecting and testing specimens, reporting test results, and returning employees to safety-sensitive duties after a drug or alcohol violation.
Covered employers in the transportation industry must adopt policies and programs that comply with DOT mandates.
Consider the duty to provide a safe work environment.
Under the Occupational Safety and Health Act of 1970, covered employers have a duty to provide a safe working environment. Drug testing employees is one way that employers can promote a safe work environment and eliminate workplace hazards caused my drug-impaired stoners at work. Yet, because no drug test is available to accurately test for marijuana impairment, some employers no longer see the benefit of screening for it.
With or without drug tests, employers can still promote workplace safety by implementing a zero-tolerance drug policy that mandates sobriety at work and outlines consequences of possessing, using or being under the influence of marijuana while on-the-job. However, if choosing to forego drug-testing altogether, employers should first analyze any exposure that may result from not drug-testing employees.
Consider whether your drug testing policy is discriminatory.
Another reason to revise existing drug testing policies is to avoid liability resulting from a discriminatory policy.
The use or design of a drug testing program to intentionally discriminate against employees on the basis of protected characteristics, such as race, color, sex, national origin, religion, disability, or age (40 or older), is an unlawful employment practice under Federal anti-discrimination laws. Even if discrimination is not intentional, drug testing programs may also violate Federal anti-discrimination laws if the programs disproportionately exclude individuals of a protected class.
Examples of unlawful drug testing practices could include testing only applicants of a certain race; using selection procedures that screen out a certain group; or using different cut off scores for different groups.
To avoid unlawful employment practices, employers enforcing drug-free workplaces should administer tests and other selection procedures without regard to an applicant or employee’s protected characteristics and ensure that drug tests and selection procedures are job related.
Consider the tight labor market.
With the widespread use of medical and recreational marijuana, it may be difficult to recruit individuals who can pass a pre-employment drug test or to retain employees if implementing random drug testing programs. Recent trends of “quiet quitting” and the Great Resignation may have employers that are desperate for workers abandoning strict drug testing policies or letting marijuana specific testing go up in smoke.
While foregoing drug-testing may appease applicants and current employees, it may also expose employers to liability and require employers to defend against negligent hiring, training, supervision, or retention claims. For example, an employer may be liable if an intoxicated employee injures another employee or customer and the employer knew or should have known of the employee’s intoxication while at work.
It is not surprising that employers are left dazed and confused by the numerous factors employers must consider when drafting, implementing and enforcing drug testing policies. Seeking the advice of legal counsel may eliminate the strains of policy implementation and make the roll out of new or revised policies easier.
If your workplace has unionized, next month’s article, Weeding Out: Drug Testing Woes for Unionized Workplaces, may pique your interest.
