HR Legalist

Weeding through the Uncertainties of Marijuana Testing in the Workplace

The legalization of marijuana—both recreational and medicinal—continues to sweep the nation. As a result, many employers are facing the same, perplexing question: Should we continue drug testing employees for marijuana? As with all new laws and regulations, the answer to this question remains hazy. However, despite this ambiguity, there are various steps employers can take to ensure they are in full compliance with all federal and state laws.

First, under federal law, employers must understand which employees are required to be tested and which are not. Under the Drug-Free Workplace Act (“DFWA”), a “drug-free workplace policy” is required for:

• (a) any organization that receives a federal contract of $100,000 or more; and
• (b) any organization receiving a federal grant of any size.

Understandably, many employers mistakenly believe that the drug-free workplace policy requires employers to drug test employees. The law itself, however, is not such a buzzkill.

In order to maintain a drug-free workplace under the DFWA, employers must “make a good faith effort” to ensure that all covered employees are aware that “the unlawful manufacture, distribution dispensation, possession, or use of a controlled substance,” including marijuana, is prohibited in the workplace. The DFWA does not, however, require drug testing or bar a federal contractor from employing an individual who uses marijuana outside of work.

That said, the Department of Transportation (“DOT”) regulates certain employers in the transportation industry with employees whose jobs are considered “safety-sensitive.” Such positions include pilots, bus drivers, truck drivers, train engineers, subway operators, airline pilots and flight crews, and ship captains. With respect to such positions, the DOT has a zero-tolerance policy towards the use of controlled substances that are illegal under federal law, including marijuana, and has enacted detailed rules governing drug testing requirements and procedures related to those positions. Notably, the DOT’s testing rules do not authorize medical cannabis under a state-established program as a valid excuse for a positive drug test by a covered employee. Thus, for transportation employers subject to DOT regulation, the DOT’s marijuana prohibition trumps—or “preempts”—any state law that protects employees from adverse action due to their use of marijuana.

However, drug testing, including marijuana testing, is not typically a legal requirement for employers of non-DOT employees. In fact, some states and localities prohibit pre-employment marijuana testing. For example, the City of Philadelphia recently enacted an ordinance which prohibits many employers from requiring job applicants to submit to pre-employment drug tests for marijuana use. The Philadelphia ordinance even allows for aggrieved employees to file a complaint with the Philadelphia Commission on Human Relations if improperly tested.  In a similar vein, New Jersey employers, while permitted to test for marijuana in the pre-employment context, are prohibited from taking adverse employment action solely due to the presence of marijuana in an employee’s system. Instead, in order to take adverse employment action against an employee who tests positive for marijuana, a New Jersey employer must meet the state’s “reasonable suspicion” standard—which acts as a safety valve for employers who can articulate observable signs of impairment while an employee is on the job. New Jersey, which has not yet published its standards for certifying the Workplace Impairment Recognition Experts (WIRE) required under its cannabis legalization law, recently issued interim guidance governing when testing is appropriate due to workplace impairment.  The New Jersey law, and similar laws in other marijuana-friendly states, raises the question of whether pre-employment testing is worth the trouble.

Unfortunately for employers, these laws and regulations are as complex and unclear as they seem. With more marijuana legalization laws in the pipeline, the details of setting up and regulating dispensaries, allowing or prohibiting home growing, and dealing with prior convictions are still being hashed out.  With all of these laws developing in real time, the details of how employers are to balance employee rights with legitimate safety concerns are sometimes an afterthought in the text of the laws themselves, leaving it to courts and regulators to clarify employment issues.  To further complicate matters, while marijuana is still illegal under federal law (and accordingly, medical use is not protected under the Americans With Disabilities Act), some state disability discrimination laws have been interpreted to protect off-duty medical use as a reasonable accommodation in some circumstances. Unless and until federal and state marijuana laws are reconciled, inconsistencies and ambiguity will remain.

For now, employers who are not covered under federal law should keep up to date on their state’s laws and regulations surrounding cannabis use and testing in the workplace, and make sure that their handbooks and policies comply with whichever federal, state, and local law is most favorable to employees. When faced with suspected impairment or performance concerns, it is often best for management and HR to take a case-by-case approach, with the assistance of counsel. In the meantime, HR Legalist will continue to track federal, state, and local developments on cannabis and the workplace. As always, Obermayer’s Labor and Employment attorneys are prepared to answer any questions you may have regarding employee drug testing and to help you comply with your state’s testing regulations.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.