State of the law: marijuana and the workplace

One of the most daunting issues facing employers today is maintaining a safe workplace in the ever-evolving landscape of marijuana legality, drug testing restrictions, and the challenges of proving impairment. Shifting societal attitudes and trends toward legalization are evident as 82 percent (41) of the states have approved medical marijuana and 46 percent (23) have legalized recreational marijuana. Key issues facing employers include:

• Cannabis remains a Schedule I drug under the Controlled Substances Act. Congress has considered several bills to legalize cannabis, but as of now, those efforts have stalled.
• Drug testing is not a reliable indicator of active impairment from marijuana. While tests can detect if someone has consumed cannabis, they remain inaccurate in measuring real-time intoxication, since marijuana can stay in the system after 30 days of non-use. Although some argue saliva tests are best at detecting recent use, studies indicate that blood and oral fluid THC concentrations are relatively poor or inconsistent indicators of cannabis-induced impairment. Moreover, components of cannabinoids, including legal substances such as CBD oil or synthetic products legal in some states, like Delta-8, can trigger false positive results. Further, there is no agreed-upon standard for impairment. Yet, employees testing positive for marijuana following a work-related accident hit a 25-year high in 2022, up nine percent from 2021. (Quest Diagnostics)
• With a tight labor market and more states legalizing marijuana use, it is becoming more difficult to find workers that meet a drug-free criteria. Some prospective employees only search for companies that don't test.
• A complex and changing patchwork of state and local laws and emerging case law means employers must stay informed and adaptable. Some states allow employers to take adverse action against job applicants or employees solely based on a positive drug test. Others outright prohibit pre-employment cannabis screening. Many states provide some protection for medical cannabis patients, and a more recent trend protects employees' off-duty recreational cannabis use. For multi-state employers, the patchwork of laws creates a nightmare of compliance challenges.
• Disability discrimination is a significant legal risk when deciding whether to drug test.

Despite these challenges, generally, employers are not required to allow marijuana use at the workplace or allow employees to work "under the influence" of marijuana.

Federal programs

OSHA policy on drug testing

In the 2022 whistleblower handbook, the Biden administration affirmed the 2018 "clarifying" policy issued under the Trump administration. Most instances of workplace drug testing are permissible under §1904.35(b)(1)(iv). Examples of permissible drug testing include:

• Random and pre-employment drug testing.
• Drug testing unrelated to the reporting of a work-related injury or illness.
• Drug testing under a state workers' compensation law.
• Drug testing under other federal laws, such as a U.S. Department of Transportation rule.
• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Employers cannot use drug testing as a tool to dissuade the reporting of injuries or a form of discipline. While blanket post-injury drug testing policies are prohibited, employers can test post-injury if there is a reasonable basis to believe drugs contributed to the incident and the drug test is capable of measuring impairment at the time the injury or illness occurred. All employees involved in the chain of responsibility should be tested. For example, if a load fell off a lift and caused an injury, employers should document that the employees who assembled the load, those who attached the load to the lift, the lift operator, and even others involved in the incident were tested.

DOT

The Department of Transportation (DOT) drug testing is very specific for every regulated agency and marijuana use is prohibited and tested for DOT-covered employees. The Federal Motor Carrier Safety Administration (FMCSA) raised the minimum random drug testing rate from 25 to 50 percent beginning in 2020. In addition to random drug and alcohol testing, the FMCSA requires pre-employment and post-accident testing. Employers must also obtain testing information from an applicant's previous employers over the past two years.

Notably, the DOT recently approved oral fluid testing as an additional methodology for drug testing, effective June 1, 2023. But for an employer to implement oral fluid testing under the regulation, the Department of Health and Human Services must certify at least two oral fluid testing laboratories, which hasn't happened yet.

A new report by the American Transportation Research Institute, the research arm of the American Trucking Association, evaluated the impact of the legalization of marijuana on the trucking industry. Findings show that from 2020 to 2022 more than 100,000 truck drivers tested positive for marijuana through the clearinghouse and were removed from duty. Although those drivers may return to work after "a series of remedial steps are taken," the report claims the positive tests contributed to a perceived driver shortage. The use of legal CBD products is not a legitimate medical explanation for a laboratory-confirmed positive result for marijuana.

Sixty-two percent of the carriers favored changes to federal drug-testing policies, with 47 percent calling for a sobriety or impairment test to help distinguish between drivers who use marijuana recreationally and those who use the substance while on duty.

ADA

While courts have agreed that medical marijuana use does not enjoy the protections of the Americans with Disabilities Act (ADA) since it remains illegal at the federal level, it's not that simple. Under the ADA drug testing is allowed because drug abuse is not considered a disability. If an applicant or an employee is taking medical marijuana for a disability and suffers an adverse employment action because of a positive drug test, the employer could be liable. The ADA requires reasonable accommodation for medical cannabis users who have an underlying disability both during the pre-employment drug testing process and during employment. While this does not mean employers must permit on-site use of medical marijuana, employers should allow the worker to explain and may need to engage in the interactive process to determine whether they can reasonably accommodate the marijuana usage.

Laws in twenty-one states - Arizona, Arkansas, California (beginning Jan. 1, 2024), Connecticut, Delaware, Illinois, Maine, Maryland, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Virginia, West Virginia and Washington, D.C.- specifically prohibit employers from discriminating against workers based on their use of medical marijuana.

State laws

Whether an employer can legally test current employees and/or job applicants for marijuana use or take an adverse action against an individual who has a positive drug test depends on the state, and in some cases the locality, where they operate. Each law is unique. Many states have enacted provisions imposing drug testing restrictions, such as limiting pre-employment testing, providing protections for medical cannabis users, and prohibiting cannabis-related discrimination.

A growing trend has been explicitly protecting off-duty recreational use and, again, the laws vary widely. Last year, California added such protections with its passage of AB 2188, making it unlawful for an employer to discriminate against an individual for using cannabis off the job. Employers with California workers have until January 1, 2024, to comply with the new rules. Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island also have laws that explicitly protect off-duty recreational use. Effective August 1, Minnesota, the most recent state to legalize recreational marijuana, amended the Consumable Products Act (CPA) to prohibit employers from disciplining or discharging employees (or refusing to hire applicants) who use "lawful consumable products" outside of work.

While these rules vary, in these states generally employers may no longer require or request pre-employment cannabis testing or refuse to hire an applicant solely because the applicant tested positive for cannabis on a pre-employment test. Further, employers cannot require routine physical examination cannabis testing for most positions nor can they require cannabis testing on an arbitrary or capricious basis. There are exceptions for safety-sensitive positions. Reasonable suspicion cannabis testing (which includes post-accident testing) and treatment program cannabis testing (as defined by the law) for all employees can continue.

In most states, nothing prohibits employers from acting against employees who use, possess, sell, transfer, or are otherwise impaired by marijuana while working, while on work premises, or while operating an employer's vehicles, machines, or equipment.

A good resource for updated information on state laws (including employment protections) is The National Organization for the Reform of Marijuana Laws' (NORML) updated interactive site.

Practical considerations for employers

1. Reconsider the drug testing program, especially regarding the inclusion of THC and the consideration of safety-sensitive positions. Mitigate legal risks by having a clear drug use policy that has been reviewed by counsel and provided to all employees. Be cognizant of collective bargaining responsibilities. Frequently remind employees of the risks and dangers imposed by workplace impairment and the consequences.
2. Since reasonable suspicion marijuana testing is permissible in most states, consider focusing on impairment rather than simply testing for the presence of THC. Develop clear guidelines on how to detect cannabis impairment and what to do when an employee is suspected of working under the influence. Illinois, which prohibits an employer from terminating an employee for off-site marijuana use, permits adverse employment action if the employer has a good faith belief that the employee is under the influence of marijuana while on-site. "Good faith belief" includes observations of the employee's speech, physical dexterity, agility, coordination, and demeanor. The odor of marijuana is a telltale sign. New Jersey guidance recommends a trained staff member or third party complete a "reasonable suspicion" or observation report. To support termination from an observation report, a combination of one or more observable signs of drug or alcohol use must be observed and documented by at least two supervisors within 24 hours.
3. Since many symptoms could be the result of an underlying medical condition that is protected under the ADA and/or state discrimination laws, employers should engage in the "individualized assessment" and "direct threat analysis" when medical marijuana is involved.
4. In states where medical marijuana use is protected from workplace discipline, a standard workplace policy should require those employees to verify their medical marijuana authorization to a medical review officer. A policy for employees who request accommodation of medical marijuana use should be developed to determine whether the usage can be reasonably accommodated.
5. Know the state workers' compensation requirements regarding reimbursing injured workers who are medical cannabis patients. Twelve states explicitly require it, four that do not require it, and many are silent on the issue.
6. Stay abreast of changing state, local, and case laws.