Medical Marijuana and Workplace Testing: Part I
The recent state legalization of medical marijuana has caused great confusion in workplace drug testing. Employers are questioning if marijuana should still be included in testing, the best method for testing, and how to continue testing pre-employment applicants. This list will only continue as additional state laws are passed allowing for the use of both medical and potentially recreational marijuana in the coming years.
Remember that marijuana use is still illegal under federal laws, classified as a Schedule I substance. Thus, all workplaces that are federally funded or required to comply with federal regulations regarding the drug testing of workers in safety-sensitive positions must follow the standards of the Drug-Free Workplace Act of 1988. For example, all safety-sensitive employees at the Department of Transportation (DOT) are required to undergo regular drug testing which included marijuana on the panel. (CDL, FAA, FRA, FTA, etc.)
As of January 2020, the following U.S. states and territories have legalized marijuana:
Recreational and medical use: Alaska, California, Colorado, District of Columbia, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington.
Medical Use only: Arizona, Arkansas, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maryland, Minnesota, Missouri, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, and West Virginia.
How does this affect your testing program?
Whether your company is located in a state with legalized marijuana or not, you can utilize, create and implement a drug testing program. We encourage you to begin by consulting legal counsel and reviewing your current drug testing policy. Keep your employees in the loop, address the changes you’re making, and explain the importance of maintaining a drug-free workplace. Next, be sure to educate and train all managers as you make changes to the policy.
Why you should continue testing for marijuana:
- Improve the health of employees
- Assure the safety of all employees while on the job
- Enhance company morale
- Increase productivity
- Decrease crime
Are there known exceptions?
Pre-employment drug testing laws differ by state, but most states allow employers to test applicants for drugs as long as they comply with the state’s regulations. In addition, some states require that employers provide written notice that drug testing will occur in job postings. To check the legal status of a specific state, please check this State-by-State Legal Status Guide.
On January 1, 2020 Nevada law took effect prohibiting employers from considering pre-employment marijuana drug test results unless subject to Department of Transportation (DOT) safety-sensitive drug testing.
May 10, 2020 New York City law will prohibit employers from conducting pre-employment marijuana drug testing unless subject to DOT safety-sensitive drug testing.
What if an employee has a medical marijuana ID card?
Safety-sensitive trumps medical ID cards. If you hold a position testing under DOT regulations, your position will not allow you to consume even marijuana, even for medical use. Currently, the laws of Arizona, Delaware, Minnesota, and Oklahoma prohibit termination of employees for testing positive for THC if they possess a valid medical marijuana card (source). Employers are to prove impairment of work by the employee if discharging for a THC positive test in these states.
What does this mean?
The main goals of marijuana workplace testing lead back to employee safety and productivity. Depending where you are located and the nature of your industry work, state and local laws vary. If you are a multi-state employer it is vital that you work with your legal counsel to carefully draft your company drug testing policies to comply with local requirements.
If you need assistance with your company’s drug testing policy, contact Tomo Drug Testing for help. Based in Springfield (MO), St. Louis (MO), Kansas City (MO), Indianapolis (IN), and Tulsa (OK), we offer customized solutions to make drug testing simple, and our nationwide network of clinics and providers allows Tomo Drug Testing to be available anytime, anywhere. For a free needs analysis, give us a call today at 1-888-379-7697 or contact us online. We would be happy to help!