In a time where marijuana legalization is rapidly expanding, all employers should reassess their workplace drug testing policies to be sure they are in compliance with existing and soon to be effective state and local laws.  Currently, thirty-three states, the District of Columbia, and Puerto Rico have passed laws broadly legalizing marijuana in some form.  Eleven of those states — Alaska, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, and Washington — and the District of Columbia have adopted laws legalizing marijuana for recreational use.  The Illinois law, which will become effective January 1, 2020, is the most expansive recreational law to date and has created a lot of uncertainty with respect to the risk assessment for drug testing of employees for marijuana.  Nevada will prohibit employers from taking adverse action against applicants who test positive for marijuana, with exceptions for, among other jobs, safety-sensitive positions and motor vehicle drivers who are subject to testing under state or federal law.  New York City, with some similar exceptions, will bar employers from requiring applicants to submit to testing for marijuana on May 10, 2020.  This rapidly evolving legal landscape presents new challenges for employers, especially multi-state employers.  Employers must balance complying with conflicting federal, state, and local laws, maintaining a safe work environment, and protecting applicants’ and employees’ privacy and other legal rights.

Around 15 states — including Arizona, Connecticut, Illinois, Massachusetts, Minnesota, New York, and Pennsylvania — have employment protections for medical marijuana users.  Generally, off-duty medical marijuana use is protected in these states and applicants and employees cannot be discriminated against for being a registered medical marijuana cardholder or because they test positive for marijuana on a drug test.  As a result, many employers have implemented various reasonable accommodation processes when applicants and employees test positive for marijuana and proffer lawful marijuana use as a legitimate medical explanation for their test results.  However, employers may fire employees for being under the influence of or impaired by marijuana while they are at work or during work hours, which may — to many employers’ surprise —  present a separate challenge if an employer relies exclusively on drug test results.

It is well-known that urine testing, the most common form of drug testing used by employers, does not provide conclusive evidence of current impairment.  This difficulty in establishing what constitutes evidence of impairment creates potential liability for employers that take adverse action against employees based solely on positive test results for marijuana.  As an Arizona federal district court stated earlier in the year, “it is clear to the Court that proving impairment based on the results of a drug screen is a scientific matter which requires expert testimony.”  In addition, employees will increasingly try to make the case that their employers were mistaken in  assessing their behavior or conduct and whether they have a good faith belief to require employees to submit to testing in the first instance and then take employment action on positive test results.  As states continue to legalize marijuana use, what type of facts or evidence constitutes proof of marijuana impairment will be a key concern and ripe for litigation.  For many companies, regardless of the ultimate outcome, the prospect of litigating such issues (and retaining expensive experts) is a “loss.”

Companies that are regulated by or do business with the federal government must test certain employees.  Safety-sensitive positions, such as CMV drivers and pipeline employees, are subject to alcohol and drug screening.   However, DOT-regulated employers may still face risk under some state laws because the DOT regulations do not mandate any form of discipline for employees who test positive.

Some employers have eliminated pre-employment testing of applicants for marijuana or marijuana testing altogether, while maintaining other drug testing requirements, because of the changing laws and social norms and the resulting consequence that testing for marijuana automatically excludes too many otherwise qualified employees in a challenging hiring environment.

Developing a well-defined employment policy on marijuana use can minimize the risk of harm from a workplace safety perspective and decrease the likelihood that drug testing and disciplinary action based on marijuana use will open the door to liability for adverse employment decisions.  For example, a policy that simply prohibits the use of illegal drugs can create uncertainty because of marijuana’s legal status in various jurisdictions.  If medical and recreational marijuana use is allowed in states where your employees work, it’s time to take a fresh look at your drug testing policy. As more states legalize marijuana use, employers should prepare for increased use of marijuana by their workforces, a rise in positive test results, and challenges from applicants and employees who have failed drug tests and/or who claim they were not impaired while working.  To ensure your organization is in compliance, consult employment counsel who can provide guidance and help navigate through the maze of federal, state, and local statutes.