As hiring regulations continue to change, employers may need to review how they screen candidates or handle drug test results. Recent updates to federal marijuana testing rules, Philadelphia fair chance hiring requirements, and cannabis employment protections in New Jersey may be worth a closer look. We’ll explain what changed, why it matters, and what steps you can take next.
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DOT: Medical Marijuana Does Not Override Positive Drug Tests
The U.S. Department of Transportation (DOT) has clarified that medical marijuana use under state law does not excuse a positive drug test result for DOT-regulated employees. The clarification comes after the Justice Department and DEA reclassified some state-regulated medical marijuana products under federal law.
In a recent Q&A, the DOT addressed whether a Medical Review Officer can verify a positive marijuana test as negative when an employee says the result came from a state-licensed marijuana product. The answer is no.
The DOT explained that even after rescheduling, state-dispensed marijuana is not an FDA-approved drug. A “legitimate medical explanation” requires a legally prescribed controlled substance that complies with federal law, and state-issued medical marijuana cards don’t meet that standard.
This guidance is important as marijuana laws continue to change at the state level. Even where state law permits medical or recreational marijuana use, DOT-regulated employees remain subject to federal drug testing requirements for safety-sensitive positions.
What Employers Need to Know
If you have DOT-regulated employees, you should continue following DOT drug testing requirements, regardless of state marijuana laws.
To stay aligned with current guidance, consider these steps:
- Separate DOT and non-DOT policies: Clearly distinguish between federally regulated safety-sensitive positions and other roles.
- Communicate expectations: Make sure employees in DOT-regulated roles understand that state-authorized marijuana use may still lead to a positive test result.
- Monitor marijuana law changes: Continue tracking changes to marijuana laws at the federal and state levels, especially if your organization operates in multiple locations.
New Jersey Court Allows Cannabis-Related Hiring Claims
A New Jersey appeals court recently ruled that individuals may sue employers for alleged violations of the state’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, known as CREAMMA.
In Sanders v. The Levari Group, LLC, the plaintiff alleged that an employer rescinded her job offer after she tested positive for cannabis. A trial court dismissed her CREAMMA claim, finding that the law did not create a private right of action. The appellate court disagreed and reversed the dismissal, concluding that an individual may bring a private lawsuit alleging violations of the statute’s cannabis-related employment protections.
Under CREAMMA, employers cannot take adverse action solely because someone uses cannabis recreationally. The law does allow employers, among other things, to maintain a drug- and alcohol-free workplace and prohibit use or impairment during work.
What New Jersey Employers Need to Know
This decision may increase litigation risk for employers that conduct pre-employment drug testing or take adverse action based on cannabis test results.
If you hire or employ workers in New Jersey, consider taking these steps:
- Review drug testing policies: Consider whether your organization needs to test for cannabis in all roles as part of pre-employment screening.
- Avoid automatic disqualification: Do not rely solely on a positive cannabis result unless an exception applies. Policies that automatically disqualify someone based only on a positive cannabis test may leave your organization more vulnerable to claims.
- Train hiring teams: Make sure recruiters and managers understand when cannabis-related information can and cannot be used in employment decisions.
Philadelphia Publishes Updated Fair Chance Hiring Notice
Philadelphia recently published an updated notice for its Fair Chance Hiring Law. The notice explains recent amendments to the city’s Fair Criminal Records Screening Standards Ordinance (FCRSSO), which took effect in January.
The updated notice summarizes new employer requirements under the amendments, including:
- Notifying applicants that a criminal background check will include an individualized assessment based on the specific record, job duties, and job requirements
- Applying shorter lookback periods for felony and misdemeanor convictions
- Considering evidence of rehabilitation
- Providing written notice of an adverse employment decision
Philadelphia employers can also use the updated notice to satisfy the law’s requirement to provide candidates or employees with a summary of their rights before taking an adverse action.
What Philadelphia Employers Need to Know
If you hire in Philadelphia, now is a good time to review your adverse action process and compliance requirements under the FCRSSO. Consider taking these steps:
- Review job postings and notices: Make sure your job postings, pre-adverse action notices, and other hiring materials include required information. Use the updated notice when providing applicants or employees with a summary of their rights under the ordinance.
- Train your hiring teams: Train recruiters, HR teams, and managers on when to consider criminal history, what they can ask for, and how to follow the individualized assessment process.
- Prepare for potential investigations: If a complaint is filed, you may need to explain how you conducted the individualized assessment and provide documentation for any adverse employment decision. Keep records organized so you can show how decisions were made.
Build a Compliant Screening Strategy with InCheck
Fair chance hiring laws and marijuana testing requirements are areas where employers need to pay close attention, especially if you hire in multiple jurisdictions. Staying ahead of these changes can help your organization reduce compliance risk and maintain a fair hiring process.
InCheck can help your organization build a screening program that aligns with your hiring needs and compliance requirements. Reach out to learn how we can help you build a program that supports your organization’s hiring goals.
Disclaimer: This blog is for general informational purposes only and should not be construed as legal advice.