May 7th, 2019 | John Mallios, Senior Vice-President, Drug & Health Screening

Marijuana Laws Are Changing: What to Consider in the Workplace

As we continue to track events that can impact hiring in your states and cities, we delve deeper into the larger issue of changing marijuana laws. Most recently, for example, a bill was passed in New York City in April that proposes barring New York City employers from drug testing job candidates for marijuana as a condition of hiring. With Mayor Bill de Blasio neither signing or vetoing the bill, it became a law as of May 10, 2019. The law provides that it will take effect one year later, giving New York City employers until May 10, 2020, to get ready to comply with this law, which is the first of its kind in the United States.

The Law does make exceptions for the following:

• Jobs involving safety and security
• Jobs associated with a federal or state contract
• Police officers and other law enforcement or criminal investigation personnel
• Jobs requiring a commercial driver’s license (CDL)
• Workers who care for or supervise children, medical patients, or people with disabilities
• Workers on construction sites, not just those operating heavy machinery
• Roles that impact health and safety, as determined in city rules
• Drug testing provided under collective bargaining agreements

Just as in our recent blog on laws that impact background checks in the hotel industry, our experts weigh in on what employers need to consider to pro-actively address potential impact, while continuing to ensure workplace safety.

Marijuana Use Today:

Marijuana continues to be the most commonly used substance in the United States. Workplace drug testing positivity rate is at its highest levels since 2004, and the positivity rate for marijuana has increased nearly 17% since 2014, and nearly 24% for federally-mandated drug testing. From a federal standpoint, Marijuana is classified as a Schedule I substance under the Controlled Substances Act, in the same category as MDMA/Ecstasy and heroin.

Medical marijuana laws that have been enacted at the state level (a total of 33 thus far, plus the District of Columbia, Guam, Puerto Rico, and the US Virgin Islands) provide legal protection for access and use by users for certain medical conditions. In addition, the use of recreational Marijuana is legal in 10 states plus the District of Columbia. Many of these laws also include provisions with respect to employment. For example, Arizona’s law prohibits a medical marijuana user from using while at work, but also prohibits an employer from discriminating against a person in hiring; or imposing any term or employment condition based on the person’s status as an authorized medical marijuana user.

Workplace Policy:

For drug testing that is not federally mandated, state and local laws governing marijuana and workplace testing must be accounted for in employer policy, which may require hiring protection and accommodation of authorized medical marijuana users. Employers should consider the below with respect to their non-federal workplace testing policy:

• Employees performing “at risk” or “safety-sensitive” functions should disclose use of any physician prescribed or recommended substance to the employer (prescription drug or marijuana) that was initiated in advance of working, with a statement from the physician specifying knowledge of the employee’s job functions and determination if use of the substance can affect the individual’s ability to safely perform.
• Medical marijuana patients should be required to provide valid evidence of a state-issued medical marijuana card to the employer, as well as state contact information for verifying its authenticity.
• The policy document should specify that:- Its central purpose is to ensure safety in the workplace and for the public.- Employees are continually responsible for ensuring themselves to be free from effects of any substance used.- The federal definition regarding marijuana is adopted by the employer.

  – Marijuana is deemed to be a substance with potential for impairment in any user and, consequently, may bring about hazard to the workplace or to the public.

  – Certain job functions performed by employees are deemed “at risk” or “safety-sensitive” (as defined by the employer or by the jurisdiction) and, therefore, subject to workplace testing.

  – A confirmed positive drug test result for marijuana may subject the individual to discipline identical to prohibited use of any substance.

  – For the sake of safety in the workplace and for the public, drug testing will be performed in certain scenarios.

In addition to workplace policy, employers should consider:

• Recurring supervisor training in employer policy, particularly surrounding marijuana use and actions a supervisor is authorized to take when impairment is suspected, or when marijuana use has been confirmed.
• Recurring supervisor training for recognizing signs and symptoms of possible use (oftentimes referred to as Reasonable Suspicion or Substance Abuse Awareness training).
• Providing educational information to employees covered by the testing policy that includes reminders regarding the employer’s marijuana position in jurisdictions that provide for medical or recreational use.
• Identifying in job descriptions and vacancy notices that a job is “at risk” or “safety-sensitive”, and that job candidates and employees in such a job will be subject to workplace testing.
• Having a signed acknowledgement of policy receipt with affirmation from all prospective and covered employees to abide by all policy provisions and specifications.

Most importantly, the employer’s testing policy must be carefully reviewed by qualified legal counsel to ensure alignment with all applicable regulations.

Regardless of a state’s position on marijuana use, maintaining a safe work environment is still essential for businesses. Sterling offers comprehensive pre employment drug test solutions to help your company stay compliant while meeting workplace safety requirements. If you have questions or want to get in touch with our Drug and Health Screening experts, contact us today!

Sources:

https://news.bloomberglaw.com/daily-labor-report/new-york-city-looks-to-bar-marijuana-testing-for-job-applicants
https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3860393&GUID=7040463F-8170-471C-97EC-A61AE7B1AA2F&Options=&Search=
https://news.bloomberglaw.com/daily-labor-report/medical-marijuana-use-worker-protections-growing-rulings-show?context=article-related
https://www.questdiagnostics.com/home/physicians/health-trends/drug-testing
https://www.drugabuse.gov/publications/research-reports/marijuana/letter-director

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.