Testing For Marijuana In 2022 – Do you know your state’s laws?

In this video, we talk about marijuana and workplace testing for marijuana in 2022. Drug testing expert, Joe Reilly discusses what you need to know about testing for marijuana in 2022.

Joe answers these questions and more, in today’s video.
Joe Reilly, President of National Drug Screening. Welcome back to our video blog series. Today’s a hot topic; testing for marijuana in 2022. Has your company dropped testing for marijuana? Is testing for marijuana legal? Let’s find out.

Today’s topic, testing for marijuana in 2022; hot topic. Marijuana has been a hot topic for the last 10 years. Is it legal? Is it legal medically? Is it legal recreationally? It depends on what state you live in. It is illegal on a federal level.

If you work for the Federal government, there is testing for marijuana. It is prohibited. If you work in the United States Department Of Transportation (DOT) regulated industry, as a covered employee, a bus driver, a truck driver, an airline pilot, a subway car driver; the use of marijuana is prohibited, and you can be removed from your safety sensitive covered DOT position if you test positive for marijuana. DOT drug testing is very regulated.

You’re an employer and you’re not regulated by the United States Department Of Transportation. Can you still test for marijuana? The answer is yes, with a couple of limited exceptions. And we’ll come back to those.

Workplace Drug Testing for Marijuana is Legal

So yes, you can test for marijuana, in most places. And yes, you should continue to test for marijuana, where it’s allowed.

Why? Because if you drop marijuana testing and you don’t test for marijuana and your employee causes an accident and hurts somebody and they turn up positive for marijuana after that accident, you could potentially be sued for negligence. You want to know if your employees are under the influence of marijuana at work; if they’ve smoked marijuana. You can continue to test for marijuana.

Now, if you don’t like that, then change your policy. And the leadership of your company should get together and decide what is going to be your drug free policy regarding testing for marijuana. And that discussion should be held among the leadership and attorneys should be brought in, and experts, consultants should be brought in, and your HR and your safety departments should be brought in, and you make an intelligent decision based on where you’re located, what state, what are the laws in that state regarding marijuana, what type of job positions you have, there’s a difference between somebody sitting in an office selling on the phone and somebody driving a forklift in a warehouse. What are your overall HR and safety policies? So, you’ve got to make some decisions. Are we testing for marijuana? Are we not testing for marijuana? If we are testing for marijuana and we get a positive, what are we going to do about it? Are we going to make an accommodation for someone who takes marijuana medically? Or are we not going to make an accommodation?

Now, I was at a training seminar just recently regarding marijuana in the workplace, and there was a bunch of great questions that I wrote down and recorded some of the answers. And I wanted to share those with you. And I was on a panel at this seminar with some attorneys and some safety managers and HR folks. So, some of these answers came from some of those old other folks and some of these answers I provided.

Questions about Marijuana and Workplace Drug Testing

What is the general state of drug testing for marijuana around the United States in 2022? Well, it’s pretty much business as usual. We see a handful of companies have dropped marijuana testing, but the overwhelming majority of businesses in the United States that do drug testing, still test for marijuana.

Is testing for marijuana illegal in the USA? So, I mentioned this earlier, in most places, testing for marijuana is legal, but it’s illegal, testing for marijuana is illegal in New York state, in Nevada, and in the city of Philadelphia. These jurisdictions have outright prohibited preemployment marijuana testing in most companies, most industries, except where it’s regulated and required by law, such as DOT-regulated companies; trucking companies, airlines, mass transit systems, railways, those types of industries. There may be other exemptions for marijuana testing of employees depending on the safety sensitive nature of the work being performed by an employee. Check out our State By State Guide for marijuana in the workplace.

So, the question was, what about DOT and testing for marijuana? Business as usual. Marijuana is illegal on the Federal level. For DOT-regulated companies, it is a prohibited substance, and you can be removed from your safety-sensitive job if you test positive for marijuana.

Are employers doing away with testing for marijuana? No, not so much. We don’t, we don’t see that so much. Okay? In most states, marijuana testing is still legal. But there are some areas where, although the testing is legal, they have laws that say, you cannot take any adverse action based solely on a positive drug test for marijuana. So, this kind of limits the usefulness of the drug tests, but at least you know and at least you can have a conversation with your employee.

State Laws on Marijuana Drug Testing

You’ve got to know the laws in your state. Some states, as I just mentioned, say you cannot take adverse action based solely on a marijuana positive. Some states say you can take adverse action. Some states say, well, you can take adverse action if, besides the positive marijuana test, there was other evidence, perhaps reasonable suspicion, that an employee might have been under the influence at work. Can we tell for sure if someone is under the influence of marijuana at work? No, there is currently no test that can tell us that someone is impaired by marijuana at the moment that we are testing them.

Are there resources available to help employers make the decisions they need to make? Yes, there are. We have at National Drug Screening, a very comprehensive section on our website called Marijuana In The Workplace. And it’s got three sections that can help employers make decisions. One is a state by state guide to the workplace laws on marijuana. So, you can look on our website and look up your state, find out what the laws are. The second is what we call workplace considerations for marijuana use. What should you consider? And the third section is what’s called a checklist of impacting issues for employee use of marijuana. What can happen in your workplace if employees are using marijuana? Maybe accidents can happen.

So, a great resource on the nationaldrugscreening.com website, is called marijuana in the workplace.

Now, another question we got, is traditional urine drug testing still the right way to go for marijuana testing? Well, it can be, but you’ve also got lab-based oral fluid drug testing, which can give you more of a more recent lookback period for the use of marijuana. So particularly for post-accident drug testing, reasonable suspicion drug testing, I would recommend oral fluid drug testing because it will determine, if the user is positive, that the use was in the last day or two. Perhaps even the same day. Okay?

Marijuana Laws Updates from 2021

Now really quick, uh, before we close out for today’s topic on marijuana in 2022. What’s happened recently just in the past year, 2021? Okay? Well, Colorado and Rhode Island both passed decriminalization laws. So, people can use marijuana and they’re not going to go to jail. Okay?

Alabama passed legalized medical marijuana, but no employer restrictions. That’s good news for employers.

In Washington, DC, which has had legal marijuana for a while, they passed a law that says no adverse action on a medical marijuana positive. So, you can’t take adverse action in Washington, DC on a medical marijuana positive.

The state of Connecticut legalized adult-use cannabis, but they did not limit the employer’s ability for drug testing; fitness for duty. But they did say that marijuana, a positive marijuana test cannot be the sole determination for adverse action.

New Jersey legalized recreational marijuana but didn’t provide any guidance to employers.

And New Mexico legalized recreational marijuana but did not restrict employers in their ability to do marijuana drug testing or take adverse action.

What’s the Future of Marijuana and Workplace Testing

So, what’s the future, and as an employer, what should you do? You’ve got to get together, you’ve got to make some decisions, you got to know the state law, you’ve got to get some expert consultation from your attorney. I can help you. You can call me. You can go to our website, nationaldrugscreening.com. We have a great section called Marijuana In The Workplace. Check it out. I’m available to help with marijuana in the workplace and keep watching those laws because they are changing every day.