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Ten states and Washington, D.C., have legalized recreational marijuana use with more states, including Illinois, New Jersey and New York, expected to follow suit. Shifts in state law have left several employers wondering how to address company drug use policies as well as drug testing procedures.

State Marijuana Laws*

States that permit recreational and medical marijuana use (dark green): Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada,  Oregon, Vermont, Washington, Washington, D.C.

States that permit medical use only (light green): Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Maryland, Michigan, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, West Virginia (Alabama and Mississippi have additional restrictions; Louisiana allows oils and topical applications)

States expected to legalize marijuana in 2019 based on support by the public, the governor and legislators (black): Connecticut, Illinois, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island and Vermont

Congress mandated drug testing for workers in trucking, rail and other industries following a deadly train crash in Maryland in 1987, and several employers conduct drug testing for new hires as a best practice even when it isn’t legally required. The Society for Human Resource Management reported that more than half of employers conduct drug testing on job applicants. Today, applicants in states with legalized recreational marijuana use are failing drug tests at higher rates than the national average, Quest Diagnostics reported.

What’s more, drug use by the U.S. workforce increased each year between 2015–2017 in several industry sectors, according to the . “Our analysis suggests that employers can’t assume that workforce drug use isn’t an issue in their industry. In fact, drug test positivity in the majority of industry sectors analyzed is growing,” said Barry Sample, Ph.D., senior director, science and technology, Quest Diagnostics Employer Solutions. “The highest rates were in consumer-facing industries, including jobs in retail and health care and social assistance.”

Although decriminalization of marijuana is increasing, none of the medical or recreational marijuana laws require employers to allow employees to use, possess or be impaired by marijuana during work hours or in the workplace, even if for medicinal purposes. “It is akin to a no-alcohol policy at work. If you can’t be drunk at work, you can’t be high at work,” said .

Under federal law, the drug remains illegal and is classified as a Schedule 1 drug. “For the most part, employers can still rely on marijuana being illegal under federal law when shaping their policies and procedures around marijuana,” said Robin Taylor Symons, Esq., co-managing partner of Gordon & Rees.

This is important to note for truckstops that employ truck drivers. Despite a changing landscape nationally regarding the legality of marijuana use and questions regarding employment-based drug tests, truck drivers must still test negative for use of marijuana during pre-employment screenings, random drug tests and post-accident tests, and fleets must maintain a drug testing program under Federal law. Failing a drug test is a disqualifying event for a driver. 

Conducting Drug Tests
Turner said employers can still perform drug tests. “There is nothing in the state law that says otherwise. Drug tests are still valid, legal and essential to employers,” she said. “The difference is in certain states, Massachusetts and Connecticut in particular, there are separate laws on how to use the results of those drug tests.”

Turner said she expects to see more case law developing on pre-employment drug tests. “I’ve been relieved and surprised at how employer-friendly decisions have been,” she said.

Turner added that under the federal American with Disabilities Act, there is not a duty to accommodate medicinal marijuana. “Recently there is new legislation and case decision in some states, Colorado and California, that are showing some signs of shifting positions on the duty to accommodate,” she said, adding that some states, including Massachusetts, Rhode Island and Connecticut, have enacted legislation and addressed the duty to accommodate. “In those states, the employer is required to investigate whether a medical user could be accommodated, that could include overlooking a positive test if there is pre-employment drug screening.”

The Department of Transportation’s Office of Drug and Alcohol Policy & Compliance does not recognize medical marijuana as a valid medical explanation for a positive drug test.

Creating a Company Drug and Alcohol Policy
Employers may take adverse action for an employee’s legal, off-premises use, in accordance with the company’s drug policy. “That assumes that the company has a drug policy,” Symons said. “For those of you working without a handbook, this would be a good time to get one. It is very hard to navigate these issues without a written policy to rely on.”

Alcohol and drug-free workplace policies, including drug-testing procedures that prohibit impairment by alcohol or a controlled substance (le- gal or illegal) at the workplace, are generally recommended and should do the following:

• Remind employees of the company’s zero tolerance for on-the- job impairment;
• Train managers and supervisors to identify signs of impairment, such as looking lethargic or having trouble walking;
• Manage employees’ expectations.

“My advice to all employers is if you have a zero-tolerance policy, say that in your handbooks and identify that,” Turner said.

Even in states where medical marijuana is legal, employers, for the most part, can maintain a drug-free workplace and advance their policy, Symons said.

Some states prohibit employment decisions based solely on the person’s status as a medical marijuana user or cardholder, Symons said. Those states include Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Nevada, Pennsylvania and Rhode Island.

Symons said she emphasizes the word ‘solely.’ “Terminations are more often upheld when there are several factors like evidence of impairment, behavior in the workplace combined with a drug test. We think it will be more important not to rely exclusively on a drug test no matter what your state law is,” she said. “It is important to document that you’re using more than a drug test in most circumstances.”

Testing for Impairment
One challenge, Turner said, is the testing to confirm impairment is difficult for marijuana because there is no reliable metric for determining the particular level of THC from marijuana usage that impairs the user and for how long that user remains impaired. “THC can stay in a person’s body for 30 days. That doesn’t mean the person is high for 30 days and is impaired. It means they’ll test positive for a compound they’re allowed to use,” she said.

Gordon & Rees has clients that won’t test for marijuana unless there is suspicion someone is impaired. “If you do test, recognize that levels of THC do change. A high level of THC is an indicator of recent use of marijuana,” Turner said.

Turner added that employers have to be cautious when relying on a drug test for marijuana. “Some clients use it as supporting evidence that someone was impaired. Use it with signs of suspected impaired behavior. Then it is safe to take some action,” she said.

Examples of impairment include lack of focus, slurred words, lethargic, glazed eyes, stumbling, paranoia, aggressiveness, impaired judgment, impulsiveness, loss of self-control, tiredness and lack of motivation. “That doesn’t mean someone under the influence will have all of these, but they will have one to two of these,” Symons said.

Focusing on Safety
Employers are allowed to conduct drug testing for certain positions, such as that considered safety positions, and not others, so long as everyone in that position is treated equally and there is prior notice of when the employer would conduct testing, Turner said.

A safety-sensitive position is one in which job performance can affect the safety of the employee and others, such as a truck driver or forklift operator. An employer must be able to demonstrate that the employee’s inability or impaired ability to perform job-related tasks could result in a direct threat to his or her safety and/or the safety of others. Sensitive positions include those where employees are:

• Driving any motor vehicle (contractors for onsite repairs, road repair and tire services, parts delivery, valets, shuttle drivers);
• Working with power tools;
• Operating equipment (manufacturing industry);
• Working on elevated surfaces (ladders, scaffolding);
• Performing in the construction industry; and
• Working as security guards (or any industry/profession where employees carry weapons).

Even in states where medical marijuana is legal, employers, for the most part, can maintain a drug-free workplace and advance their policy.

Turner cautioned employers against declaring every position as safety sensitive.

Using Caution When Taking Adverse Actions
While the majority of states that have legalized marijuana allow employers to take adverse action against an employee’s marijuana use by relying on the fact that marijuana remains an illegal controlled substance under federal law, Massachusetts and Connecticut are leading the trend to prevent employers from taking adverse action against an employee who uses marijuana for medical purposes. “In those states, it makes sense to go slow and get good advice,” Symons said.

Symons suggested employers in states with legalized marijuana consult with legal counsel before taking adverse employment action against an individual who tests positive for marijuana.

“The duty to accommodate, or not, is found in the language and terms of the respective state’s discrimination and marijuana statutes,” Turner said.

Adhering to Best Practices
Symons and Turner outlined the following best practices for employers:

• Designate safety-sensitive positions in writing and make sure that job descriptions reflect how impairment would pose a safety risk.
• Include in job descriptions a notice of potential drug testing for safety-sensitive positions and that the respective position is deemed to be a safety-sensitive position.
• Offer employee assistance where appropriate (e.g., leave for drug/ alcohol rehabilitation, Employee Assistance Program).
• Engage in the interactive process when discovering an employee is using medical marijuana for a disability (and is employed in a state that treats medical marijuana as legal).
• Evaluate the employee’s ability to safely perform the essential functions of the job with or without reasonable accommodation.
• Remember the “safety-sensitive position” exception.
• Be aware of the states who are or will be legalizing medical and recreational marijuana in the future.
• Recognize state marijuana laws are not the same, and each state affords different protections.
• For example, some states provide employment protections related to marijuana use (with some exceptions for safety-sensitive positions) while other states offer no protection in employment.
• Drug tests are not yet reliable source to establish whether an employee is under the influence.
• Revise drug and alcohol policy to state that employees will be disciplined, up to and including termination, when the employee is found to be displaying behaviors consistent with being under the influence and tests positive for marijuana.

Taylor added that it is essential for employers to enforce their drug-free policy and testing procedures consistently.

*As of May 2019.

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