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When is Pre-Employment Testing for THC Prohibited?

Katherine Miller

Last updated on October 2nd, 2020 at 04:20 pm

Is pre-employment drug testing for marijuana legal in the United States – mostly YES

Guest Blog Writer:

Katherine Miller, Director of Brand Management and Compliance
The Current Consulting Group, LLC
CurrentCompliance.org – State Laws Database

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

The past year brought about previously unthought of changes to how workplace drug testing can be conducted in some locations. One state and one city, for instance, passed laws that severely limit employer rights in terms of marijuana testing. As of February 1, 2020, 8 bills had already been proposed that would limit employers’ rights to test for marijuana, the majority pertaining to pre-employment circumstances.

So, when can employers test applicants for THC? Currently, only one state (Nevada) and one city (New York City) place limits on pre-employment marijuana testing, and no state outright prohibits pre-employment testing for marijuana.

Nevada AB 132

As of January 1, 2020, Nevada AB 132 is in effect. AB 132, which was passed in June 2019, amends the state’s marijuana law to prohibit employers from failing or refusing to hire applicants because of a drug test indicating the presence of marijuana. Employers are not prohibited outright from conducting pre-employment testing for marijuana, they are simply prohibited from taking action solely based on marijuana positive results in most circumstances.

Nevada’s law includes a carve-out for certain safety-sensitive positions, including, but not limited to, firefighters, emergency medical technicians, positions requiring the operation of a motor vehicle (and for which regulations require the employee to submit to drug/alcohol testing), or any position that could adversely impact another’s safety (in the employer’s opinion).

New York City

As of spring 2020, New York City will be the first municipality in the United States to completely prohibit THC testing for applicants. It will be considered a discriminatory practice for employers to conduct testing for the presence of THC or marijuana as a condition of employment.

Similar to Nevada’s law, the New York’s ordinance includes a safety-sensitive carve-out that includes, but is not limited to: police/peace officers, law enforcement, those with investigative functions at the Department of Investigation, positions requiring a CDL, positions supervising/caring for children, positions supervising/caring for medical patients or vulnerable persons, or any position that could impact health/safety of other employees/public as deemed by the Commissioner of Citywide Administrative services or the Chairperson.

What’s to Come?

It still makes good business sense to screen applicants for marijuana and it is still permitted in every state. At the same time, it is essential for employers to stay up to date on progressing legislation in order to keep policies compliant with new laws that impact employer rights.

Employers may want to consider alternative testing circumstances that are more palatable in states that restrict pre-employment testing for marijuana. “Pre-duty” testing, for instance, involves conducting drug tests of employees prior to starting a work shift. Another option is “pre-access” testing, which involves conducting drug tests before workers enter certain designated workplaces.

Bottom line? Be very familiar with the state laws that apply to your company. You can comply with these laws without giving up on pre-employment testing for marijuana.

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