May 15th, 2024 | Sterling

Webinar Recap: 3 Ways to Strengthen Your Marijuana Testing Program

Reading time: about 5 minutes

Top Takeaways: 

• Understand which regulatory authorities set the requirements for your organization’s employee drug testing procedures before updating your policies.
• Employers can also benefit from mapping out the legal requirements of each state and its impacts on their drug testing program.
• Drug testing procedures should be established in a way that prioritizes compliance with changing laws, including forward-looking processes for managing risks. 

In light of evolving regulations around marijuana drug testing for employment, it’s become increasingly critical for organizations to reassess and update their testing program to reflect any relevant changes in the law.

In our first blog post of this series, we explored the basics of marijuana drug screening along with recent updates to federal and state law. In this follow-up, let’s look at three distinct ways employers can strengthen their employee drug testing program. You’ll leave with actionable insights allowing you to better assess and optimize your procedures in response to these changing laws.

We addressed these topics in our recent compliance webinar, “Marijuana Essentials: A Compliance Update.” Led by Angela Preston, Associate General Counsel, Corporate Ethics and Compliance, and Shawn O’Neil, Compliance and Chief Privacy Officer, Vault Workforce Screening, A Sterling Company, the webinar explored many aspects of marijuana testing compliance. Click here to watch the full webinar on-demand.

During the live session, we asked our audience the following question, and we’d like to know your answer too:

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In response to our poll, 9% of respondents said they updated their policy in the last 30 days, 16% this year, and 35% last year, whereas 36% of respondents were unsure, and 4% said their policy has never been updated. 

Shawn commented: “I like seeing that many people have updated their policies either this year or last. However I would like to see the ‘unsure’ or ‘never’ results go lower, and we can certainly help our audience and clients with that.”

So, what’s next?

Step #1: Conduct an Authority Assessment

Shawn kicked off our discussion by outlining the need for HR compliance professionals to conduct authority assessments when examining their drug test policies. “The first question to ask is: which regulatory authorities set the standards for your drug testing procedures, and what are the corresponding requirements?” -Shawn O’Neil.

For example, if the nature of your workplace falls under the authority of the Department of Transportation (DOT), then your business will be required to conduct THC screening of all your drivers for safety reasons.

Authority assessments should be thorough and include a detailed inventory of relevant regulatory obligations. Be sure to account for such factors as: 

• Are you a federal employer, or do you have a federal contract that requires you to continue testing?
• What does your overall employee footprint look like?
• Where do your employees live and work, and where will you be testing? 

These questions are all necessary to ask yourself in building a screening program that helps to enable compliance.

Step #2: Map Out Your Testing Program by State

The second step when strengthening your testing program is to analyze and map out your legal requirements by state. How can HR professionals map out these needed requirements?

Ask yourself several essential questions to help guide you along the way, such as: 

1. In which states are you legally allowed to test for THC? The answer should be easy to uncover by reviewing current state laws for any published guidance.
2. Who are you allowed to test? As our webinar covered in more detail, a number of states are naming different exempted groups, with some states providing a longer list than others. This means you’ll need to carefully understand which groups may be exempt across your organization based on where your testing will occur.
3. Whenexactly canyou can test for THC? Specific states may impose limitations on your organization’s reasons for testing and what criteria you should use when determining cause. No matter which state you’re testing in, it’s critical to understand the nuances of all relevant drug testing laws to ensure you’re remaining compliant.
4. Whatexact substances are you allowed to test for? Some states will have specific laws defining which metabolites can be detected, together with the method of collection. For example, once you’ve reviewed all relevant laws, you might decide that testing oral fluid is a solution worth adding to your program, or you might even find that you aren’t able to test for THC in any form at all.
5. What actions (if any) can your organization take related to a marijuana drug screening result? Importantly, if you’re testing in a state allowing the use of medical marijuana, the law may include more nuanced language around permissions and accommodation of use during off-work hours. 

Step #3: Establish Procedures

Finally, once you’ve mapped out all of your legal obligations by state, the third and final step is to put your policies and procedures in place.

This will require the following considerations: 

• Is your program going to handle every component of your testing program in the same way globally, or will you handle some aspects differently based on the location of the test?
• Are you going to remove THC across the board?
• Will you build your program around the most restrictive state relevant to your business, or will you handle your program state by state?
• Are you going to handle pre-employment drug tests differently than random ones? 

“After you’ve addressed these questions, you’ll want to make additional decisions around how your program is executed and establish a process to manage when things go wrong.” -Shawn O’Neil

For example, if you have a drug test panel that removes THC and another that includes it, first be sure to ask yourself: “What happens if the collector checks the wrong box?”

Additionally, it’s smart to review your procedures and classify which job roles will require which drug panels for testing. This can be pretty simple if you’re working in a space like DOT, which requires a standard five-panel drug test for every employee. However, when you start reviewing non-federal testing requirements, you may find that you need to use different panels for each job role your organization offers.

Sterling’s Compliance Expertise in Action

While it can be difficult to track the latest regulatory developments in the area of employer drug testing, you can find additional insights and guidance in the full on-demand webinar.

Explore Sterling’s Drug & Health screening services and help build a workplace culture based on trust and safety.

Want to stay in the know on future compliance webinars and other compliance content? Bookmark Sterling’s Compliance Hub, where our global compliance team provides regular guidance and updates on the complex, evolving global regulatory landscape to help keep you informed.

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.