Legalization of Marijuana and Other Recreational Drugs is on the Horizon

With the leadership changes in Washington DC, you can expect a push on the federal level as well as state level to legalize all drugs with marijuana leading the way. Medical or recreational marijuana is already legal in most states, and some states have already “de-criminalized” other drugs like heroin, cocaine, magic mushrooms and more. It is possible, and even likely that the federal government will legalize marijuana at some point in the not too distant future. This has left many employers asking what they should do under these inconsistent legal circumstances especially if they have locations in multiple states.

Whether you are an employer or a background screening professional, you should be proactive in educating your team on how to address and answer these concerns and assist employers in determining how to proceed. For one, employers should be proactive in evaluating how they will handle these type situations, and this should be reflected in their policy decisions.

As of February 2021, marijuana is fully illegal in only six states—Alabama, Tennessee, South Carolina, Kansas, Wyoming, and Idaho. Please check out this Marijuana Map to review the workplace marijuana laws in all states. http://bit.ly/THCLAWS

The questions that employers should be asking and making decisions about include the following:

  • What are the marijuana laws in my state?
  • Should I be testing for marijuana? If so, under what circumstances?
  • Can I fire or not hire an employee who tests positive for marijuana?
  • If an applicant tests positive for marijuana, could I still hire that person?
  • Have I addressed marijuana laws in my company’s drug-free workplace policy?

It is important to recognize there are some situations where an employer might provide accommodation for medical marijuana use depending on the state in which the employer operates. This is different for employers regulated by the Department of Transportation (DOT). For any DOT regulated employees, marijuana is still prohibited. A positive DOT marijuana drug test result is a violation and has consequences. In non-DOT situations, employers must be careful regarding medical marijuana state laws or case law, which may either require or allow them to consider reasonable accommodation requests.

Employers continue to have a right to maintain a safe and drug-free workplace, so testing employees for marijuana and other drugs remains legal but the actions taken in the case of positive results may vary state to state.  

PREEMPLOYMENT CONCERNS IN TESTING FOR MARIJUANA

Always be aware of your state laws concerning drug testing for employers and job applicants. Be extra careful if applicants state they have a medical marijuana card. If your policy requires preemployment drug testing, then conduct the test. If the test is positive and a medical marijuana card is presented, use caution when making the final decision on whether to hire the applicant.

Most employers are conducting preemployment drug testing, including testing for marijuana. Again, this is legal, but there are a few notable exceptions, including the following:

In New York City it is prohibited to drug test an applicant for marijuana except for those who would fill certain safety-sensitive positions.

In Nevada, an employer cannot refuse to hire someone solely due to a positive marijuana test. There are exceptions in Nevada for safety-sensitive positions and certain medical positions.

A 2019 Oklahoma law prohibits employers from discriminating against an employee or applicant solely on the basis of a person’s status as a medical marijuana licensee.

Versions of the Oklahoma law are popping up in other states as well. Employers must be careful of any adverse action taken against an applicant or employee solely on the person’s status as a medical marijuana card holder.

Employers should not refuse to hire applicants solely because they state they are medical marijuana users and should follow their company drug-free workplace policy. If your policy is out of date or does not address these concerns, then check with your attorney or other expert when there is a question. If your policy is to test for marijuana, always conduct the test.

WHERE CAN EMPLOYERS FIND HELP WITH MARIJUANA ISSUES?

You are encouraged to download the Workplace Considerations for Marijuana Use Checklist (http://bit.ly/THC-CHECKLIST). This will help guide you in your decision-making process. There are also many other resources available at www.NationalDrugScreening.com .