Marijuana Laws: Ensuring Safety Through Employee Background Screening

Over 75% of states now allow cannabis in some form like oral fluids. Colorado and 19 other states have legalized recreational and illegal drugs or illicit substances like marijuana; medical cannabis may also be legal there. Few states that were at the forefront of legalizing marijuana addressed employer drug testing policies and what could happen when testing came back positive. 

With employers in these states continuing to test employees for cannabis use, firing or disciplining those that tested positive, even when this use took place outside work hours and was legal.

Multiple states have introduced legislation to shield employees from being tested for cannabis in the workplace while permitting them to consume cannabis off-duty under some medical conditions.

Eight states, including Colorado and three major cities in Texas, restrict cannabis testing for employers to some degree. States which have legalized recreational cannabis consumption recognize initial limitations in other states' systems.

This article investigates trends in how different jurisdictions, such as Colorado, permit or restrict employee cannabis testing and explores how employers can adapt to such changes.

Recent Trends In Employer Testing For Cannabis

Employers in most states can still conduct drug screening and discipline employees who use cannabis even off duty provided the employer abides by workplace pre-employment drug screen and testing laws and follows them accordingly.

Certain state laws restrict criminal records after cannabis use. However, several high recreational use states such as Colorado, California, Massachusetts and Oregon remain without any legislation to safeguard legal cannabis consumption or limit employer testing for presence of drugs. These include Colorado, California, Massachusetts, and Oregon.

An increasing number of states are passing laws restricting when and how employers may perform all the common types of drug tests on employees and what disciplinary actions are available should an employee test positive for cannabis. These states can be divided into groups: on one end, some states permit employers to test prospective employees. While at the other extreme are those which prohibit this testing altogether.

Montana, Nevada and New York City are among the jurisdictions which limit pre-employment testing requirements. Some states prohibit employers from penalizing or dismissing medical history of users who consume cannabis off-duty. However, they don't mandate employers allow medical cannabis use at work.

Connecticut employers may fire or discipline employees for off-job cannabis use if their employer provides them with certain conditions of employment history and alcohol policy outlining this matter. Although states like Connecticut may restrict random drug testing procedures, private employers still can test employees and discipline those found using cannabis without regard for state restrictions on drug testing programs.

New York and Rhode Island, among the states allowing recreational cannabis use, restrict employee cannabis testing in most situations.

Though most states don't prohibit employer drug testing directly, many prohibit taking adverse actions against employees when positive test results or evidence of marijuana usage is discovered.

Employers cannot terminate employees based on cannabis use, nor should they refuse to hire or promote them. Although employers cannot test employees for cannabis, these laws don't prohibit testing all employees. They contain important exceptions that allow testing employees for cannabis.

Employers may conduct prescription drug tests on employees using urine samples that are working in safety-sensitive positions to check for cannabis usage and discipline them for positive results if found.

Employees in safety-sensitive positions vary between states but typically encompass heavy machinery operators, medical professionals and pilots, and employees handling potentially harmful substances.

Government laws do not prohibit employers from carrying out tests necessary to meet obligations under federal statute, regulation or funding agreements. For instance, U.S. Department of Transportation tests aren't included here.

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Additionally, Several States Allow Reasonable Suspicion And Post-Accident Testing

These laws do not mandate employers to allow cannabis possession, cultivation or use in their workplace; job candidates cannot be high at work. Potential employees or drug users not covered by one of the exceptions can still consume cannabis and other common drugs at home as long as it does not interfere with performance at work. Employers may test workers for illegal substances who appear impaired.

States that permit recreational cannabis use take steps to treat cannabis like alcohol. This is to maintain a drug-free workplace act intact. They protect off-duty usage while permitting employers to enforce and implement illicit drug-free workplace programs.

How To Comply With Testing Restrictions

Employers in states that permit recreational or medical cannabis should ensure their testing policies comply with local and state law; applying a drug policy across all locations may not be the optimal approach.

Care should be taken when reading laws as definitions and restrictions for terms such as "impairment", "safety-sensitive", or "impairment" can differ depending on which state it applies in. Employers should understand what laws may limit their ability to test for cannabis and take appropriate actions should there be positive results from testing.

The Americans with Disabilities Act limits testing for use off-duty. Employers could violate it if they fire someone using positive drugs like CBD oil to help with a disability but then receive a false positive marijuana test result.

Recent case law indicates that under certain medical conditions, an employer may be able to accommodate current employees by waiving any false positive results in random drug tests administered by employers. Furthermore, many states have laws which govern random testing, which could also apply during reasonable suspicion testing of cannabis by employers.

Over time, more laws will likely be created or revised than ever.

California and Illinois have introduced legislation to expand protections for employees who legally consume cannabis off duty, with some local jurisdictions such as D.C. having passed similar measures already.

Employer violations can have dire repercussions. Many laws that regulate cannabis tests in employers and associated disciplinary measures are new; there's no guidance from either administrative or federal agencies or courts about how best to comply. Employers need to keep up-to-date on changes in state and local legislation to remain compliant.

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Takeaway

Understanding the various marijuana laws across states can be complex and challenging for employers, making the services of an employee background screening firm invaluable in setting pre-employment background check policies for appropriate businesses. Partnering with such an expert may simplify life as they will interpret your needs better while leading through potentially difficult conversations. Unfortunately, there is no single answer regarding pre-employment drug test issues or cannabis legalization - each situation must be approached uniquely.