Drug testing laws are complex, inconsistent, and constantly changing based on legislatures and court decisions. Specifically, there has been a lot of movement regarding state marijuana legislation in the past several years. Today, 30 states and Washington, D.C. have comprehensive medical marijuana laws and 9 states and Washington, D.C. have recreational marijuana laws. Although companies turn to drug-free workplace programs to help keep their employees safe and productive, many still have questions.
In our recent webinar, Faye Caldwell, a highly-regarded industry expert and Managing Partner at Caldwell Everson, discussed recent laws, current trends, and state marijuana legislation. She also shared examples of how state laws can affect your workplace drug testing policies and procedures.
Seven key takeaways from our webinar include:
- One of the biggest questions remains: Is the employer required to accommodate off-duty medical marijuana use? Generally, employment protections fall into four categories with a wide range of guidance.
• States explicitly providing no employment protections
• States with explicit employment protections
• States with likely no employment protections
• States with unclear employment protections
- Before 2017, the courts generally found no duty to accommodate medical marijuana. However, a current trend indicates that more states are providing explicit employment protections for medical marijuana. Currently, 12 states have explicit protections in their medical marijuana statutes. The National Conferences of States Legislatures (NCLS) website is one way to stay current on state medical marijuana laws.
- Recreational marijuana laws differ from medical marijuana with states explicitly providing no employee protections. Remember that an employer never has to accommodate on-duty drug use or impairment. However, there is no consensus to define impairment for marijuana. Some states, such as West Virginia and Pennsylvania, do have per se laws for safety-sensitive positions using a blood test.
- Employers proactively protect themselves from hiring candidates who use drugs using pre-employment testing. Testing and any action taken based on results should occur before applicant begins working. If an applicant begins working before the pre-employment drug test is performed, he or she may be considered an employee entitled to more protections. Some states do have limitations for this reason for testing. For example, Connecticut, Maine, and Minnesota require written notice prior to pre-employment testing.
- Random drug testing can be a strong deterrent to drug use. Carefully consider how you define an “employee” and who is tested in the random test pool. It’s critical to eliminate any perception of targeting certain employees. Rhode Island, Vermont, Boulder, CO, and San Francisco, CA prohibit random drug testing.
- Unlike other specimen types, hair drug testing provides up to a 90-day detection window. It is still prohibited in some states, but recently Iowa, Louisiana, Maine, and Oregon updated their laws to permit hair testing in certain circumstances.
- Using a Medical Review Officer (MRO), even if not required, offers more protection for both the donor and the employer. An MRO “is a licensed physician who is responsible for receiving and reviewing laboratory results generated by an employer’s drug testing program and evaluating medical explanations for certain drug test results,” according to the U.S. Department of Transportation.
In conclusion, employers should consider multiple factors such as an employee’s state of residency, where employees work, states where a company does business, where the drug test collection occurs, and applicable state and federal drug testing laws when implementing a workplace drug testing program. As Ms. Caldwell reminded the audience, “Drug testing is not one size fits all.”
Watch a recording of this webinar or other webinars presented by Quest Diagnostics.
Download an updated reference for drug testing laws by state.
Download our Marijuana Legislation by State infographic.