"No two drug testing policies are identical."
By Sharon Bottcher
Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing
No two drug testing policies are identical. Each company has its own unique goals and objectives for workplace testing that determine the unique direction and details that should be included in a company’s policy.
One important decision that continues to be a hot topic is how to deal with marijuana use by applicants and employees. For instance, what if an employee is using medical marijuana to treat a health condition or if a state allows for recreational use of marijuana? How should such situations be treated in a drug testing policy? The good news is employers have a lot of flexibility to determine marijuana-related practices for their company.
Currently, testing for marijuana is permitted in all 50 states (including New York), although some states (like New York) have implemented limitations or requirements that influence when testing for marijuana is okay and/or what disciplinary actions can be taken based on a positive test result.
For example, New York legalized recreational marijuana in the Spring of 2021 and thereby implemented policy that would restrict how employers respond to marijuana in the workplace. However, it did not outlaw drug testing for marijuana. In October of 2021, the New York Department of Labor issued cannabis guidance for clarification purposes. For example, New York employers “cannot use a drug test as the basis for their determination that an employee was/is impaired by cannabis.”1
Therefore, each company, regardless of the state or states involved, must decide how to proceed with marijuana as part of its testing program. This is often determined by considering company philosophy, type of industry, or employee positions within the company. In addition to weighing the risks or safety features, companies must also consider other factors for program compliance, including:
1. US Department of Transportation (DOT) regulations
2. State laws that require compliance with specific drug testing guidelines
3. State laws that regulate how employers can test for marijuana
4. States that have medical, recreational and/or cannabidiol (CBD) laws
5. Participation in voluntary state programs that offer, among other incentives, a discount on workers’ compensation premiums
6. State workers’ or unemployment compensation regulations that permit employers to move to deny benefits based on a positive test for marijuana or other drugs
Generally, a company will choose to accept or deny marijuana as a legitimate explanation for a positive THC test result. In some circumstances, it is possible for individuals using CBD to test positive for THC and employers can treat CBD oil the same way as medical marijuana. Most state marijuana laws either specifically permit employers to restrict marijuana use by employees or do not mention employers or the workplace at all.
On the other end of the spectrum, there are medical and/or recreational marijuana state laws that give certain protections to employees and applicants and require employers to implement specific conditions that determine how you must structure your program. Under federal law, the Department of Transportation (DOT) does not currently allow any flexibility for a marijuana positive. These regulations strictly prohibit THC positive results regardless of any applicable state medical or recreational laws.
Testing for Marijuana
After making the determination on the company’s position regarding marijuana, crafting a policy to include the details of marijuana testing requirements is the next logical step. Overall, there are 4 fundamental choices that reveal the appropriate language to incorporate in a policy for marijuana. They are:
1. General language that addresses the basic requirements to accept/deny marijuana violations.
2. General language that addresses the basic requirements to accept/deny CBD violations.
3. General language that addresses the basic requirements for marijuana under federal DOT regulations when applicable.
4. Custom language that addresses the specific requirements to accept/deny marijuana-related violations for each applicable state law.
Determining where a company falls within the above 4 language choices is where it becomes a bit complicated. Ultimately, a thorough review of the medical marijuana laws must be performed for every applicable state while simultaneously considering the type of program. According to the examples above, policy language must be created with regards to prohibited conduct and possible consequences for marijuana violations, CBD violations, violations of the DOT regulations, and guidance specific to each state regarding marijuana violations.
Overall, there are 19 states including DC that fall under the general language category and address the basic requirements to accept/deny marijuana violations. These are states without specific marijuana drug testing requirements but require a basic outline of acknowledgment.
There are currently 10 states that do not have medical or recreational marijuana laws but have CBD laws to consider. These states would require slightly different language in the policy compared to states with basic requirements to accept/deny marijuana. For employers whose employees fall under DOT regulated positions, agency-specific policy language should be reviewed and included accordingly. Naturally, each DOT agency policy should include language that specifies that according to the regulations, it remains unacceptable for any safety-sensitive employee to use marijuana. Lastly, there are 16 states that require custom language in the policy to address the details that protect the employee’s right to use marijuana. The custom language varies from state to state and has slight to extreme differences that must be delineated in the policy.
In addition, the different state law requirements for marijuana use and program violations are not so cut and dry and can lead to uncertainty. Employees may believe that if marijuana is legal in their state, they are free to use it without consequences. However, a clearly written policy will eliminate some of this headache and is critical for a successful program that supports the employer from any potential challenges or grievances, especially those that could be very costly.
When writing or reviewing policy, it is equally important to keep up with changes in medical and recreational marijuana law. Companies that successfully navigate compliance do so by tracking marijuana laws in the states where they conduct business, following trends in surrounding states, and by keeping their policies, especially regarding marijuana in the workplace, current. Marijuana laws are actively changing, and companies need to stay vigilant and partner with experts in the industry to ensure company policies are clear, concise, and compliant.
© 2010-2021 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.