Can employers screen for marijuana use in the workplace?
The current landscape surrounding legal marijuana is creating a difficult puzzle that multi-state employers must navigate when constructing compliant drug related policies and procedures centered around recreational marijuana laws.
Marijuana is currently listed as a Schedule I drug under the Controlled Substance Act and thus federally illegal. Although there have been federal efforts to legalize marijuana, none have been successful. Nevertheless, many states have legalized marijuana for medical and recreational purposes. In fact, there are 39 states that have legalized marijuana for medical purposes and 23 states that have legalized marijuana for recreational purposes.
Jurisdictions generally ban marijuana testing or restrict an employer’s ability to make an adverse employment decision based solely upon a positive marijuana test result, while others broadly mandate that employers cannot discriminate against individuals who lawfully use marijuana outside of the workplace. Thus, the applicable recreational marijuana law will dictate the nature of the restriction that is being placed on employers.
Please note that this information is not all inclusive and InCheck strongly recommends that employers work closely with their legal counsel to further examine all applicable laws to ensure their drug related policies and procedures are compliant.
What jurisdictions have employment protections for recreational Marijuana use?
California prohibits employers from discriminating against a person based upon (1) the person’s use of cannabis off the job and away from the workplace or (2) an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
Connecticut prohibits employers from discharging from employment or taking any adverse action against any employee or prospective employee because such employee or prospective employee does or does not smoke, vape, aerosolize, or otherwise use cannabis products outside of the workplace.
Minnesota prohibits employers from refusing to hire a job applicant or disciplining or discharging an employee because the applicant or employee engages in or has engaged in the use or enjoyment of cannabis products, if the use or enjoyment takes place off the premises of the employer during non working hours. Additionally, Minnesota prohibits employers from (1) requesting or requiring a job applicant to undergo cannabis testing solely for the purpose of determining the presence or absence of cannabis as a condition of employment, (2) refusing to hire a job applicant solely because the job applicant submits to a cannabis test and the results of the test indicate the presence of cannabis, or (3) requesting or requiring an employee or job applicant to undergo cannabis testing on an arbitrary or capricious basis.
Montana prohibits employers from refusing to employ or discriminating against an individual because of the individual’s legal use of marijuana off the employer’s premises during non working hours.
Nevada prohibits employers from failing or refusing to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.
New Jersey prohibits employers from refusing to hire or employ any person or discharging from employment or taking any adverse action against any employee because that person does or does not smoke, vape, aerosolize, or otherwise use cannabis items. Additionally, New Jersey mandates that employers shall not subject an employee to any adverse action solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.
New York prohibits employers from refusing to hire, employ, discharging from employment, or otherwise discriminating against an individual because of an individual’s legal use of consumable products, including cannabis, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property.
Please note that although the law does not explicitly prohibit pre-employment cannabis testing, the New York State Department of Labor published guidance which stated that employers cannot test for cannabis unless the employer is permitted to do so under the law.
New York City, New York
New York City prohibits employers from requiring a prospective employee to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.
Philadelphia prohibits employers from requiring a prospective employee to submit to testing for the presence of marijuana in such prospective employee’s system as a condition of employment.
Rhode Island prohibits employers from firing or taking disciplinary action against an employee solely for an employee’s private, lawful use of cannabis outside the workplace and as long as the employee has not and is not working under the influence of cannabis. A person shall not be considered to be under the influence solely for having cannabis metabolites in their system.
Washington D.C. prohibits employers from refusing to hire, terminating from employment, suspending, failing to promote, demoting, or penalizing an individual based upon the individual’s use of cannabis or the presence of cannabinoid metabolites in the individual’s bodily fluids in an employer required or requested drug test without additional factors indicating impairment.
Washington prohibits employers from discriminating against a person in the initial hiring for employment if the discrimination is based upon (1) the person’s use of cannabis off the job and away from the workplace or (2) an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluid.
Are there any exceptions to employment protections for marijuana use?
Yes, each law contains exceptions that apply to the general prohibitions. The exceptions vary greatly from jurisdiction to jurisdiction, so it is important to work with legal counsel to understand the full scope of law in each applicable jurisdiction. For illustration purposes, California’s employment protections do not prohibit an employer from discriminating based on scientifically valid pre-employment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites, while Connecticut’s employment protections do not prohibit an employer from taking any adverse action if such action is taken in accordance with a written policy that prohibits the use of marijuana and such policy is made available to the individual prior to the enactment of such policy. Furthermore, many of the laws’ employment protections do not apply to positions that could adversely impact the safety of others.
Although there is significant variance between the jurisdictions, please do keep in mind that all the laws discussed above allow employers to enforce drug related policies and procedures that are required under federal law, such as those mandated by the Department of Transportation.
How do I know when a jurisdiction’s recreational marijuana law applies?
The most conservative approach is to consider the location of both the employer and the employee or applicant. If either party is located in a jurisdiction that has passed a recreational marijuana law with employment protections, restrictions may apply.
What steps should I take to ensure compliance with marijuana laws?
It is essential for employers to take steps to ensure compliance with applicable recreational marijuana laws. Employers should make themselves familiar with the jurisdictions that contain employment protections for lawful recreational marijuana use and understand their obligations under such laws. Further, employers should consult with their legal counsel to make any necessary changes within their drug related policies and procedures to make certain that any marijuana testing or employment actions taken are in compliance with those laws. Additionally, moving forward, employers would be wise to frequently access reliable sources to be aware of any new recreational marijuana laws that are on the horizon.
How Can InCheck Help?
If you conclude that an applicable marijuana law necessitates changes to your drug screening process, InCheck can work with you to adjust your drug testing panel accordingly. You may contact your account manager at InCheck if you have questions regarding our services, compliance resources, and how InCheck can help with your drug screening needs.