What New Cannabis Testing Restrictions Mean For Employers

03 August 2022 Law360 Publication
Author(s): Patrick J. McMahon Miranda D. Curtis

This article originally appeared in Law360 on August 3, 2022. It is republished here with permission.

More than three-quarters of states allow cannabis use in some form. Recreational marijuana is now legal in 19 states and the District of Columbia, and medical marijuana is legal in an additional 19 states.

Yet, in their initial legislation legalizing cannabis, few of these states — especially those that led the way in legalizing cannabis — addressed employer testing for cannabis use and the actions employers could take in light of those test results. This allowed employers in these states to continue to test for cannabis use and to fire or otherwise discipline employees for positive test results, even if their use was legal and outside working hours.

Now, states are starting to address employer testing for cannabis in new legislation and protect employees' otherwise lawful, off-duty use of cannabis in their state.

In the past 90 days, three laws restricting employer cannabis testing have been enacted or have become effective.

District of Columbia Mayor Muriel Bowser signed a bill on July 13 that will restrict employer testing for cannabis use. A Connecticut law limiting adverse employment actions for off-duty cannabis use went into effect on

July 1. On May 25, Rhode Island enacted a recreational cannabis law that limits employer testing for off-duty cannabis use.

At least eight states, the District of Columbia and three major cities now restrict employer cannabis testing in some form. Recognizing these other states' initial deficiencies, states that have only recently legalized recreational cannabis, such as Rhode Island, are including these restrictions from the outset.

This article examines trends in how different jurisdictions are allowing — or restricting — employee cannabis testing and how employers should adapt to these changes.

Restrictions on Employer Testing for Cannabis: Recent Trends

Most states still allow employers to test and discipline employees for cannabis use, whether on or off duty, as long as the employer complies with any general drug testing laws.

While this is particularly true in those states that continue to criminalize cannabis use, several notable recreational use states also have not enacted any laws protecting lawful use or restricting employer testing for cannabis, including California, Colorado, Massachusetts and Oregon.

A growing number of states, however, are enacting laws that restrict when employers can test employees for cannabis and the actions employers can take based on a positive result. These states fall along a spectrum.

On one end of the spectrum are states that largely allow cannabis testing by employers. Some jurisdictions, like Montana, Nevada and New York City, restrict preemployment testing altogether. Others prohibit employers from firing or disciplining medical marijuana users for off-duty cannabis use, though these states do not require employers to allow medical marijuana use at work. In yet another iteration, Connecticut employers can fire or discipline employees for off-work cannabis use, but only if they have a written employment policy and have provided that policy to employees.

However, despite the cannabis testing restrictions in these states, employers are still mostly free to test and discipline employees.

On the other end of the spectrum are many recreational use states, like New York and Rhode Island, which effectively restrict employer testing for cannabis use in most circumstances.

Though many of these states do not directly prohibit employer testing, they do prohibit employers from taking adverse employment actions against employees for positive test results or other evidence of cannabis use. Employers may not fire, suspend, fail to promote, demote, refuse to hire or otherwise penalize employees or prospective employees based on their cannabis use outside of work.

Far from being a blanket prohibition on employer testing for cannabis, however, these restrictive laws have some important exceptions.

While the number and type of exceptions vary between states, these laws generally do not apply to safety-sensitive positions. Employers can nearly uniformly test employees in safety-sensitive positions for cannabis use and discipline employees for positive test results.

The exact definition of safety-sensitive positions varies across states, but representative positions include operators of heavy machinery, medical professionals, pilots and employees handling hazardous materials.

Employers can also continue to test to comply with obligations under federal statute, federal regulations, or federal contracts or funding agreements. For example, these laws do not prevent employers from performing federally mandated U.S. Department of Transportation testing.

Many states also permit post-accident and reasonable suspicion testing.

Importantly, these laws do not require employers to allow cannabis use, possession, distribution or cultivation in the workplace. Nor do employees have a free pass to come to work high. Employees who do not fall into one of the exceptions can use cannabis outside of work as long as they are not impaired at work — and employers can test for cannabis use and discipline employees who appear to be impaired at work.

In this way, recreational use states appear to be treating cannabis akin to alcohol, protecting off-duty use while affording employers the ability to implement and enforce cannabis-free workplaces.

How to Comply With Testing Restrictions

Employers in recreational and medical cannabis states should ensure that their cannabis testing policies comply with state and local law; a blanket nationwide policy may not be the best solution.

Setting aside the general problem of there being no scientifically accepted method to test for current cannabis impairment, a close reading of the relevant law is especially necessary, as restrictions and definitions of key terms such as "impairment" or "safety-sensitive" can vary from state to state.

Regardless of the type of employer cannabis testing law, employers should be aware of how other laws affect their ability to test for cannabis and take action based on a positive test result.

The Americans with Disabilities Act in particular may pose some limitations on testing for off-duty use. For example, employers may run afoul of the ADA by terminating an employee who uses legal CBD oil to treat a disability and receives a false positive cannabis test result based on that use.

Recent case law suggests that — at least in some circumstances — an employer should accommodate this employee by excusing the false positive result.

Many states also have general drug testing laws that may apply to employer testing for cannabis use.

This is a rapidly changing area of law, and there are likely to be new or amended laws enacted over the next few years.

Several states, including California and Illinois, have introduced bills that would expand protections for employees' lawful, off-duty cannabis use. Other jurisdictions, like the District of Columbia, have already passed such laws that should soon go into effect: The D.C. bill approved on July 13 will take effect after congressional review and publication.

Repercussions for employer violations can be steep. For example, the D.C. bill provides for civil fines per violation, lost wages, compensable damages and attorney fees. Moreover, many laws restricting employer cannabis testing and associated discipline are new. Thus, guidance from administrative agencies and courts on how to comply with the requirements is lacking.

Employers should monitor state and local laws for further developments.

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