For decades employers in our country have comfortably implemented and enforced “zero-tolerance” or other drug-free workplace policies that prohibit the use of alcohol and other illegal substances, such as marijuana, for obvious safety and security reasons. With the legal landscape rapidly changing over that last few years, the drug testing compliance requirements for employers have changed dramatically.
State laws surrounding the medical and legal adult use of marijuana have successfully brought challenges to these policies and are now requiring employers to take notice, be aware of state-specific nuances and to address these laws with revisions to their drug testing policies and enforcement operations.
Recent state law changes are now limiting an employer’s ability to screen for marijuana or restricting the discipline an employer can take in response to a positive drug test for marijuana. Below we will review the states that limit the testing of marijuana.
When the state of Illinois passed the "Cannabis Regulation and Tax Act" on June 4, 2019, permitting the personal adult use of marijuana, there was immediate debate and confusion as to the impact of the law on employee drug testing programs.
The Legislature indicated that it “finds and declares that employee workplace safety shall not be diminished, and employer workplace policies shall be interpreted broadly to protect employee safety.”
The details of the bill provide that employers can:
- Adopt reasonable “zero tolerance” or drug-free workplace policies.
- Adopt drug testing policies.
- Adopt policies concerning “smoking, consumption, storage, or use of cannabis in the workplace or while on call.”
- Discipline (including terminate) any employee that has violated the employer’s policies.
- Prohibit employees from being under the influence or using cannabis “in the employer’s workplace or while performing the employee’s job duties or while on call.”
- Continue conducting drug screening in accordance with other laws, such as the required testing for Department of Transportation (DOT) regulated employees, or in accordance with other state or federal contracts of funding requirements.
An employer may consider an employee to be impaired or under the influence of cannabis if the employer has “a good faith belief” that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee's performance of the duties or tasks of the employee's job position.
Employers are protected from lawsuits related, among other things, to drug testing or disciplining an employee including termination if that action was taken in a good faith belief that the employee used or possessed marijuana at work, while on duty or in violation of the Company’s policy.
But controversy surrounds the meaning of a provision added to the new law as a last-minute compromise that ostensibly limits employer drug testing for marijuana. Section 900-50 amends the Right to Privacy in the Workplace Act protects those who use “lawful products” from discrimination at work. But Section 5(b), the second sentence states: “This Section does not apply to the use of those lawful products which impairs an employee's ability to perform the employee's assigned duties.”
How that provision is interpreted will largely rest in the hands of the courts.
The law will take effect on January 1, 2020.
Lawmakers in Nevada have approved the first-ever statewide ban on pre-employment drug testing for marijuana. Assembly Bill 132 (AB132) was signed into law by Governor Sisolak on June 5, 2019.
Beginning January 1, 2020, Nevada employers will no longer be able to take employment action if an applicant submits a drug test that is positive for marijuana unless the prospective employee is applying for specific safety-sensitive jobs.
Those jobs include a firefighter, an emergency medical technician, operator of a motor vehicle regulated under federal or state law or any position that “in the determination of the employer could adversely affect the safety of others.” This new law does not apply to inconsistent Collective Bargaining Agreements or federal rules.
The law also provides that if an employer requires an employee to submit to a screening test within his or her first 30 days of employment, the employer is required to accept and give appropriate consideration to the results of an additional screening test to which the employee submitted at his or her own expense.
AB132 reads in part:
Sec. 2. Chapter 613 of NRS is hereby amended by adding thereto a new section to read as follows:
Except as otherwise specifically provided by law:
- It is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.
- The provisions of subsection 1 do not apply if the prospective employee is applying for a position:
(a) As a firefighter, as defined in NRS 450B.071;
(b) As an emergency medical technician, as defined in NRS 450B.065;
(c) That requires an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to screening tests; or
(d) That, in the determination of the employer, could adversely affect the safety of others.
- If an employer requires an employee to submit to a screening test within the first 30 days of employment, the employee shall have the right to submit to an additional screening test, at his or her own expense, to rebut the results of the initial screening test. The employer shall accept and give appropriate consideration to the results of such a screening test.
- The provisions of this section do not apply:
(a) To the extent that they are inconsistent or otherwise in conflict with the provisions of an employment contract or collective bargaining agreement.
(b) To the extent that they are inconsistent or otherwise in conflict with the provisions of federal law.
(c) To a position of employment funded by a federal grant.
- As used in this section, “screening test” means a test of a person’s blood, urine, hair or saliva to detect the general presence of a controlled substance or any other drug.
New York City, New York
The New York City Council passed Ordinance Int. No. 1445-A which will take effect on May 10, 2020, banning the screening of marijuana in a pre-employment drug test.
The Ordinance prohibits employers or their agents from requiring a job applicant to submit to a drug test “for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.”
An exception provides that anyone applying for a position that includes:
(A) As police officers or peace officers, as those terms are defined in subdivisions 33 and 34 of section 1.20 of the criminal procedure law, respectively, or in a position with a law enforcement or investigative function at the department of investigation;
(B) In any position requiring compliance with section 3321 of the New York city building code or section 220-h of the labor law;
(C) In any position requiring a commercial driver’s license;
(D) In any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in paragraph 15 of section 488 of the social services law; or
(E) In any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by: (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.
Additional exceptions include:
(2) The provisions of this subdivision shall not apply to drug testing required pursuant to:
(A) Any regulation promulgated by the federal department of transportation that requires testing of a prospective employee in accordance with 49 CFR 40 or any rule promulgated by the departments of transportation of this state or city adopting such regulation for purposes of enforcing the requirements of that regulation with respect to intrastate commerce;
(B) Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
(C) Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or
(D) Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
Employers in Washington D.C. are prohibited from drug screening for marijuana until after a formal offer of employment has been made to a job applicant.
Back in 2015, the Washington City Council passed Code §32-931, providing a restriction on pre-employment marijuana testing. The Ordinance states:
Effective: July 22, 2015
(a) An employer may only test a prospective employee for marijuana use after a conditional offer of employment has been extended unless otherwise required by law.
(b) Nothing in this chapter shall be construed to:
(1) Affect employee compliance with employer workplace drug policies;
(2) Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or at any time during employment;
(3) Interfere with federal employment contracts; or
(4) Prevent the employer from denying a position based on a positive test for marijuana.
Side note: There is a proposed ordinance pending in Washington D.C. & in Massachusetts that would prohibit pre-employment marijuana testing in its entirety, with some safety-sensitive exceptions. We will have to wait and see if these laws gain traction and if any other states or municipalities follow suit with such requirements.
Changing times for Employers
With the slew of these and many other legal changes impacting employee drug testing programs, employers across the nation are officially put on notice. It is time to review and revise drug testing policies to ensure compliance with these new requirements, in each of the states you operate. The days of “nationwide” company policies are long gone.
Employers should also review their related procedures (to effectively enforce the policy), detailed job descriptions (being able to defend positions that you would consider to be safety or security-sensitive), and to provide education and training to your supervisors on how to confidently act, handle and document reasonable suspicion instances.
 HB 1438, Article 1, Section 1-5(e).
 The term “good faith belief” is not defined in the law.
 820 ILCS 55/5.
 A.B. 132, sec. 2 [Ch. 613 NRS].
 The jobs “with the potential to significantly impact the health or safety of employees or members of the public” has yet to be decided.