This article in HR Management and Compliance explores what employers need to know about marijuana drug test in the age of legalization. The article is summarized below. We encourage you to read the article in its entirety.
Employers have long relied upon drug testing as the most objective way to determine whether an employee is using drugs in a manner that impacts work. With the ongoing trend towards legalization of marijuana across the county, the legal environment around drug testing for marijuana has never been more complex.
The Controlled Substances Act (CSA) regulations make marijuana an illegal Schedule I controlled substance. Schedule I is the most restrictive of the five schedules under the CSA and, in addition to marijuana, includes drugs such as heroin, LSD, and ecstasy.
The Drug Enforcement Agency (DEA), in conjunction with Department of Health and Human Services, is empowered to reschedule drugs based on new information. In May 2024, the DEA proposed moving marijuana from Schedule I to Schedule III, which includes drugs such as Tylenol with codeine, ketamine, anabolic steroids, and testosterone.
The final decision on that move is still pending and, as of this writing, marijuana remains a Schedule I drug.
The State Law Landscape
According to the CDC, at least 47 states allow the use of medical marijuana in some form, and 24 states permit non-medical adult-use marijuana. Since the CDC’s report, several other states have passed marijuana legislation.
[We discuss the importance of reading the law in this article.]Employers must balance compliance with these more expansive state laws against the employer’s general obligation to provide a safe work environment for employees and customers. Employers have an obligation under the General Duty Clause of the Occupational Safety and Health Act (OSHA) to provide a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
[R&A Comment – We discuss the importance of knowing state law in this article.]Employers should consider erring on the side of preventing any employee to work while impaired or while there is some evidence of impairment, regardless of the drug potentially causing the impairment.
Unlike breath alcohol testing for alcohol impairment, testing for other drugs, including marijuana, does not provide information as to current impairment.
[R&A Comment – Remember a positive drug test does not equal impairment. BUT a positive drug test does equal Under the Influence]Thus, there is a potential conflict (that has not been thoroughly analyzed in the courts) between state laws that protect marijuana and an employer’s obligations to maintain a safe workplace and to generally engage in accident risk mitigation.
Department of Transportation (DOT) drug testing requirements preempt any state law marijuana rights, so employers have no obligation to accommodate marijuana use for those employees who are required by federal law to be tested.
Employer Policy Considerations
For employers in states that have passed marijuana legislation, if an employee or applicant discloses use of medical marijuana, as with any other drug, the employer should engage in the interactive process to determine whether the person can work and work safely while taking the drug(s).
If not, the employer must evaluate whether the employee has a legally recognized disability and if any reasonable accommodation exists that would permit the employee to comply with the employer’s workplace drug policy.
In states with permissive recreational marijuana laws or laws that limit testing to “safety sensitive” jobs, employers should factor the degree of risk from impairment when determining how expansively to interpret these state laws.
Unfortunately, some of these state laws provide little or no flexibility. Guidance from counsel familiar with state drug testing laws is recommended for difficult situations.
When creating or evaluating their drug testing policies, employers also should consider state workers’ compensation laws. In some states, drug testing policies can reduce workers’ compensation premiums for employers, and a positive post-accident drug test can be a basis for denying a workers’ compensation claim. Even in states that prohibit adverse action based on a positive test, test results may be useful to the employer’s defenses in a subsequent OSHA investigation or tort lawsuit.
Employers should also consider whether they will conduct drug testing “in-house” or hire a third-party administrator to handle collection, testing, and medical review analysis. With the right third party administrator, employers can better ensure they are obtaining valid pre-testing consent, using certified laboratories for drug testing analysis, and medical review officers to verify results—all of which are general best practices for any employer that has a drug testing policy. While hiring an experienced third-party administrator may not always prevent litigation, it can better protect an employer from an aggrieved employee’s claims.
Finally, not all states with permissive marijuana laws have created a private right of action for employees under those laws.
Regardless of where an employer operates, it must consider the risk, including the media implications, of state law litigation against the risk of employee injury and/or an OSHA violation. In the age of legalization, employee drug testing for marijuana is fraught with potential pitfalls, and employers should always consult experienced counsel when creating and implementing their drug testing policies. [We discuss the power of a random drug testing program in this article.]
James P. Randisi, President of Randisi & Associates, Inc., has been helping employers protect their clients, workforce and reputation through implementation of employment screening and drug testing programs since 1999. This post does not constitute legal advice. Randisi & Associates, Inc. is not a law firm. Always contact competent employment legal counsel. To learn more about the rights of employees who test positive for marijuana, Mr. Randisi can be contacted by phone at 410.494.0232 or Email: info@randisiandassociates.com or the website at randisiandassociates.com
