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Over half of the United States currently has access to some form of legal marijuana, whether for medical or recreational purposes.¹ With this ongoing trend toward legalization, many employers are wondering how their rights are impacted in terms of drug testing in the workplace.

Employee Protections in Current State Laws

Currently, more than 10 states provide specific protections for marijuana-using employees in specific situations.² Arizona’s medical marijuana law, for example, stipulates that a registered medical marijuana using employee is not to be considered under the influence at work solely based on the presence of marijuana metabolites or components that appear in insufficient concentration to cause impairment. Additionally, employers may not discriminate or otherwise penalize an employee/applicant based on their status as a medical marijuana cardholder or their marijuana positive drug test unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.³

While the majority of state laws only provide protections for medical marijuana users in the workplace, there is a rising trend to provide protections for recreational marijuana users as well. Nevada’s law (effective as of January 2020), for example, prohibits employers from refusing to hire applicants because of a positive pre-employment drug test for marijuana metabolites. The law includes a safety-sensitive carve-out for a number of specific jobs, however, applicants are not required to prove that their marijuana use was due to medicinal reasons.⁴

While the majority of state laws only provide protections for medical marijuana users in the workplace, there is a rising trend to provide protections for recreational marijuana users as well.

Trends in Legislation in 2020

Already, more than 40 bills have been proposed or carried over to the 2020 legislative season that provide some sort of protection to marijuana-using employees. While the majority of these bills only provide protections for medical marijuana users, there are a number that take it a step further and limit employer rights in terms of testing for recreational marijuana.

The Massachusetts legislature, for example, has proposed three bills that would provide protections for recreational users in the state. Similarly, these bills place restrictions on how employers respond to employee’s use of marijuana and its metabolites:

“An employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon a person’s use of marijuana...”⁵

This type of proposed legislative language is becoming more common. While proposing restrictions on employers, conditions of protected marijuana use are clearly defined. Use must be outside of work, employees cannot be impaired while performing required tasks of employment, etc. It is likely that as the year progresses, we will see more bills that provide workplace protections for marijuana-using employees, including bills that would restrict drug testing..

What Does This All Mean for Employers?

Clearly, drug testing technology makes it possible to detect drugs in a person’s system. Additionally, supervisors can be trained to recognize the signs and symptoms of substance abuse to indicate that an individual is “under the influence.” However, a positive drug test result cannot be used to definitively declare that a person is “impaired.”

A number of existing state laws, and much of the proposed legislation pertaining to workplace marijuana testing, refers to “impairment” to help bolster the claim that drug testing, as it stands currently, is unfair because it cannot prove that an individual is actually impaired.

Employers should avoid using the words “impair” or “impairment” in their company drug testing policy and instead prohibit employers from being at work while “under the influence.” A positive drug test result can be included among the various ways in which someone can be considered under the influence. Employers should consult state laws carefully to determine what is permitted in their policy.

To recap, employers should do the following:

• Train supervisors to recognize signs and symptoms of substance abuse
• Use oral fluid testing to detect recent use
• Avoid using the words “impair” or “impairment” in a company drug testing policy
• Consult state laws carefully and often to determine what is permitted in your drug testing policy

Conclusion

The landscape of workplace drug and alcohol testing is changing quickly and will likely continue changing as the legalization train continues barreling forward. With many states looking to add workplace protections for marijuana-using employees, employers will likely be faced with the challenge of re-evaluating their current drug and alcohol testing programs to determine how to best continue testing for marijuana while complying with all applicable state laws