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How to Drug Test Employees after States Adopt Varying Levels of Legalization

March 10, 2017
Drug testing can be done, but you need to be careful how you do it and who you do it to.

With more states liberalizing marijuana laws, many companies worry about how to react. But be aware that there are still ways to continue workplace drug testing programs without running afoul of the law.

In last November's election voters liberalized marijuana laws in several states, which when added to earlier efforts has resulted in a welter of confusing state laws regarding medical and recreational marijuana use.

A public referendum in California legalized recreational marijuana in a state where very loose criteria regarding who could receive medical marijuana had already virtually legalized it.

Voters in Maine and Nevada also legalized recreational marijuana, while Colorado, Washington, D.C., and Massachusetts already permitted recreational use.

Voting to allow or expand laws permitting medical marijuana were Arkansas, Florida, North Dakota and Montana. In Arizona a recreational marijuana initiative was defeated, but the state already allows its medical use.

Unlike California, where the medical marijuana law led to its prescription eventually for almost any ailment, real or imagined, other states have limited medical marijuana use to those suffering from specific, named illnesses, such as cancer, epilepsy and glaucoma.

Legal protections available to workers who use recreational or medical marijuana vary widely from state to state. In Maine it is illegal for employers to discriminate against those who test positive for marijuana unless they are shown to be under its influence in the workplace.

Arkansas bans employers from discriminating against qualifying patients or caregivers who test positive from contact with the patient.

However, all these state laws recognize that professions where drug use is banned by federal law—including truck driving—are not protected by state anti-discrimination restrictions. To make matters more confusing, no matter what state law says, marijuana continues to be illegal to sell or possess under federal drug laws, and no one knows whether the Trump Administration will step up enforcement in these states.

Also at the federal level, OSHA announced late last year that it wouldn't cite employers for drug testing conducted under federal or state laws, or under state workers' compensation programs after suggesting that it might. OSHA still requires that employers “have an objectively reasonable basis” for post-accident drug testing, believing that such testing could discourage workers from reporting accidents.

So what's an employer to do? Some states allow employers to join worker's compensation drug-free workplace programs that offer premium rebates and allow testing for cocaine, marijuana, methamphetamine, PCP and opiates. If your state has such a program and you are not a member yet, join it ASAP.

To bolster your drug testing program, attorneys Nancy Delogu and Eunju Park of the Littler Mendelson law firm suggest you make clear to employees that because marijuana is still illegal under federal law, it is considered an illegal drug under your company's drug-free workplace policy, and that you reserve the right to take adverse action based on its use.

Consider the risks than can be created by employee marijuana use, and take steps to minimize those risks. None of these state laws protect employers from being sued and found liable for an employee who causes harm to co-workers or third parties while impaired. In addition, make sure that your vendors are thoroughly aware of your drug-free workplace policy.

Delogu and Park also advise educating your medical review officers so that they understand the status of state law and, if applicable, that they demand to see the employee's medical marijuana card.

Of course, none of this is guaranteed to completely protect you in today's fluid legal environment, but taking these steps should help you maintain a drug-free workplace.  

David Sparkman is founding editor of ACWI Advance (www.acwi.org), the newsletter of the American Chain of Warehouses Inc., as well as a member of the MH&L Editorial Advisory Board.
About the Author

David Sparkman | founding editor

David Sparkman is founding editor of ACWI Advance (www.acwi.org), the newsletter of the American Chain of Warehouses Inc. He also heads David Sparkman Consulting, a Washington D.C. area public relations and communications firm. Prior to these he was director of industry relations for the International Warehouse Logistics Association.  Sparkman has also been a freelance writer, specializing in logistics and freight transportation. He has served as vice president of communications for the American Moving and Storage Association, director of communications for the National Private Truck Council, and for two decades with American Trucking Associations on its weekly newspaper, Transport Topics.

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