FAQs on Marijuana & Drug Testing

Background: Thirty-three states have enacted medical marijuana laws, and 10 states also permit recreational marijuana use. None of these laws require employers to allow employees to use, possess, or be impaired by marijuana during work hours or in the workplace. Therefore, employers still can prohibit marijuana in the workplace, during work hours, and on company premises. However, some states have employment protections for employees who use medical marijuana outside of work.

1. Q: Is there any medical data on how long the effects of marijuana last if an employee uses marijuana while off duty and then comes to work?
   A: The effects of marijuana can vary greatly depending on the type, amount, and person involved. And even in states that allow medical and recreational marijuana, employers can still prohibit impairment in the workplace. As with other types of substances that can cause impairment (such as alcohol and prescription drugs), employers can assess on a case-by-case basis whether the employee is impaired at work. However, these observations may be subjective and while employers should document specific observations of behaviors, such as, "the employee appeared distracted and unresponsive to questions," it's a good idea to consult legal counsel before taking action based on a perceived impairment.
   
   
2. Q: Is there a difference between using marijuana on break and using it before coming into work?
   A: As mentioned before, employers can always prohibit medical and recreational marijuana use on company time and premises, including company vehicles. Therefore, an employer can discipline employees who use it at work, such as during a rest break. Depending on the state, though, employees may be protected for off-duty use as long as they don't show up to work impaired.
   
   
3. Q: May an employer immediately terminate any employee who fails a test for marijuana.
   A: Some states require employers to follow certain procedures before terminating an employee for failing a drug test. In Vermont, for example, employers can't terminate an employee for a positive drug test if the employee agrees to participate in and then successfully completes an employee assistance program (such a program is required for Vermont employers to conduct drug testing). Additionally, some medical marijuana laws prohibit employers from making employment decisions based solely on a person's status as a medical marijuana user or cardholder.
   
   A few states prohibit discrimination against individuals because they test positive for medical marijuana, unless the individual used, possessed, or was impaired by marijuana in the workplace or during work hours. Typically, these employment protections have exceptions for safety-sensitive positions and/or when they would result in the loss of a business license or a government contract.
   
   Note: Maine's recreational marijuana law prohibits employers from refusing to employ individuals solely because they use marijuana outside the workplace.
   
   Before making any employment decisions resulting from an individual's use of marijuana, check your state law and work closely with legal counsel to determine your rights and responsibilities.
   
   Drug Testing:
   Background - Many employers use drug testing to help maintain a safe, healthy, and productive work environment. When conducting drug tests, employers must comply with ever evolving federal, state, and local laws.
   
   
4. Q: Can an employer conduct pre-employment drug testing?
   A: Most states permit pre-employment drug testing, but some states have conditions employers must meet before conducting a drug test. For example, some states require notice, and have specific rules on administering a drug testing program. Some have restrictions on when in the hiring process employers can conduct a drug test, such as after a conditional offer of employment. Some states also require employers to have a written policy outlining specific elements of pre-employment drug testing. Both federal and state laws have drug testing requirements for safety-sensitive positions so review your applicable law before implementing a drug testing program.
   
   
5. Q: Can an employer conduct drug testing on current employees?
   A: Several states restrict testing current employees. Depending on the type of drug test, a state may completely prohibit, or limit the testing in some way. For example, several states, including California, Connecticut, Maine, and Massachusetts, among others, restrict or limit random drug testing (typically unscheduled and unannounced on randomly selected employees). With reasonable-suspicion or "for-cause" testing, many states have detailed requirements and highly specific definitions on what "cause" is sufficient to trigger a drug test. Reasonable suspicion testing is where the employer has reason to believe an employee may be under the influence of illegal drugs that may be impairing their ability to perform their job. With post-accident testing (where an employee is involved in a workplace accident and the employer suspects drug use), several states have conditions on when this type of testing is permitted. Check your state and local laws for more information.
   
   
6. Q: How should employers retain drug testing results?
   A: In a confidential file separate from the employee’s personnel file. Given the sensitive nature of the information, it's a best practice to keep drug test results separate from personnel files. Keep them in a secure location with controlled access. If records are stored electronically, they should be password protected and only accessible to those with a need to know the information.

Conclusion:
Before implementing policies and practices related to drug testing and marijuana, review applicable federal, state, and local laws carefully to ensure compliance. Continue to watch for developments, especially in the evolving area of medical and recreational marijuana laws.

For more information on this very hot topic, please join us on March 26, 2019 at 2:00 PM EST for the Medical Marijuana in the Workplace Webinar. Be on the lookout for your invitation.