This article was originally published in 2019, and was updated 7/6/2020.
As the legalization of medical and recreational marijuana use is on the rise, so are bans against pre-employment testing for the substance. It is important to work with legal counsel to develop a compliant drug-screening policy. Below are some items to consider when reviewing your pre-employment drug screening process.
Can employers take adverse action in response to a positive marijuana test?
Yes. Many states have not legalized medical and/or recreational marijuana use. Additionally, many state laws that ban pre-employment testing allow for exceptions. These include:
- Employers that contract with the federal government or are required to maintain a “drug-free workplace” in order to secure federal funding; and
- Certain positions considered to be safety-sensitive.
How do I know when the restrictions apply?
The most conservative approach is to consider the location of both the employer and the applicant. If either party is located in a state that has passed pre-employment marijuana testing legislation, restrictions may apply. Employers should be sure to consider applicants relocating for employment or companies with locations throughout the country.
Jurisdictions with bans in place
New York City
As of May 10, 2020, pre-employment marijuana testing will be considered an unlawful discriminatory practice as a condition for employment. Applicants for the following positions can still be tested:
- Construction workers
- Police officers
- Commercial drivers
- Teachers, teachers’ aides, and daycare center employees
- Positions involving supervision or care of patients in a medical, nursing home, or group care facility
- Any position that has the potential to significantly impact the health and/or safety of employees or members of the public
Applicants may also be tested for marijuana if such testing is required by the U.S. Department of Transportation, federal contracts or grants, federal or state statutes, or collective bargaining agreements.
As of January 1, 2020, employers are prohibited from denying employment due to a positive pre-employment marijuana test. However, the law will not apply to people up for jobs as firefighters and public safety positions, including emergency medical technicians.
Employers are prohibited from testing for marijuana until a conditional job offer has been made – unless otherwise required by law.
How Can InCheck Help?
In certain jurisdictions, you may continue to order a 5-panel drug screen and not take adverse action should a positive marijuana test be returned. InCheck can also work with you to set up a 4-panel drug screen, which excludes marijuana as a tested substance.
While it is important for your organization to be aware of and understand the various jurisdictional bans, you may contact your account manager at InCheck if you have questions regarding our services and how InCheck can help with your drug screening needs.
Disclaimer: This blog is for general informational purposes only and should not be construed as legal advice.