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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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Drug testing has been a staple of the hiring process for decades. But, as states legalize and decriminalize marijuana at a rapid pace, many businesses may be required to abandon the status quo and revise rigid substance abuse policies and drug testing practices. The web of state and federal statutes governing marijuana use – both medical and recreational – remains in flux. As of November 2022, 38 states have legalized medical marijuana, and 19 states have legalized its use for recreational purposes, with more states poised to follow suit. In most – but not all – of those states, applicants and employees can be denied a job or fired for using cannabis in their free time, even if the employee is never impaired at work. Recent and proposed legislation, however, reveals changes on the horizon. If your company does business in a state that has legalized marijuana use under state law, for medical or recreational use, then now is a good time to revisit existing workplace drug policies.

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Federal contractors and businesses that employ certain regulated professionals in safety-sensitive positions are required to test workers for marijuana. Other employers have a choice. There is no comprehensive federal law that regulates drug testing for most jobs in the private sector, and private-sector employers are free to decide whether, and under what circumstances, to administer drug tests for most job positions. They might decide to drug test workers as part of the hiring process, randomly, after an accident, or if they suspect a worker is under the influence of drugs on the job. Whether a business is required to perform drug testing or chooses to implement its own policy, key aspects of the program will be governed by a maze of jurisdiction-specific legislation:

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The answers vary by state. Because there is no comprehensive federal drug testing law for most jobs, the field is open to sometimes conflicting state regulation, and many states have enacted provisions imposing drug testing restrictions of various kinds. Some limit testing to "reasonable suspicion" or "probable cause" situations. Others explicitly authorize random testing under certain circumstances. Accordingly, employers that need or want to continue testing or disciplining employees for marijuana use must consider the applicable state laws. Even in states where marijuana use is legal, statutes and court decisions may provide different workplace protections or restrictions on employer action. While most states still allow employers to test and discipline employees for cannabis use, whether on or off duty, the body of law on this issue is rapidly evolving.

Some states appear to be treating cannabis like alcohol, protecting off-duty use while affording employers the ability to implement and enforce cannabis-free workplaces.

For example, <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2188" target="_blank" rel="noreferrer noopener">California’s AB 2188</a>, applicable to those who live and work in California, protects the rights of recreational marijuana users outside work and at times when marijuana use will not affect their work performance, like on their days off. Signed into law by Governor Newsom on September 18, 2022, the law amends the California Fair Employment and Housing Act to make it unlawful to discriminate against an applicant or employee who has engaged in the lawful use of marijuana outside of work. The law, which takes effect on January 1, 2024, prohibits employers from relying on tests that measure only cannabis metabolites rather than active tetrahydrocannabinol (THC) – the chemical component in marijuana that has psychoactive properties – because cannabis metabolites would not demonstrate that the individual was impaired at the time of the test. The law will not prohibit employers from taking action against employees or applicants who test positive on a test that relies on the presence of active THC, or alternatively, “impairment tests, which measure individual employees against their own baseline performance,” to determine if workers are impaired. Conversely, Ohio law, as an example, permits an employer to terminate an employee for use of marijuana otherwise legal under state law, making it a just cause termination, where that employee is also denied unemployment benefits if the employee is terminated pursuant to the employer’s drug-free workplace policy (Ohio Revised Code 3796.28). The type of legislation in California shifts focus from general use to workplace use, where in that case employers may need to reconsider what kind of tests they rely upon to make cannabis-related employment decisions. For example, hair and urine specimens measure cannabis that is not metabolically active, while certain saliva/oral fluids and blood tests can measure the psychoactive THC components in the individual’s system at the time of the test.

The complex and evolving laws regarding workplace drug testing may tempt employers to set aside marijuana testing altogether. But workplace drug testing can help employers identify issues that might make it difficult for job candidates and employees to do their jobs safely with respect to themselves and other employees, and when used appropriately, employment drug screenings help to prevent on-the-job drug use and reduce the risk of liability. The key is determining what type of drug testing policy is best for a particular business. What might be effective for an office environment may not work for a manufacturing facility, and employers may require pre-employment marijuana testing for some applicants but not others, depending on the positions’ relative safety-sensitivity. Thus, for businesses with employees in multiple roles or multiple states, a blanket nationwide drug testing policy may not be the best solution.

Moreover, legalization efforts still generally permit employers to enact policies prohibiting substance use and impairment while on the job. Proving an employee is “under the influence” is becoming a critical component of drug testing policies and has led to an increase in customized workplace policies when there is a reasonable suspicion that an employee is under the influence while working. Implementation of this policy requires training human resources professionals and management, who are typically required to administer the program, on signs of impairment, proper documentation of those signs and testing procedures, and then robust communication of the program to employees to promote awareness and transparency. While a reasonable suspicion testing program should be an integral component of a substance abuse policy for any employer, it is especially critical where pre-employment marijuana testing has been eliminated or where there are limitations on the use of a positive result.

Updating Testing Policies Despite marijuana's complicated legal status, businesses can take several steps to respond to evolving marijuana legislation while remaining both competitive and compliant. Employers should develop and disseminate a written policy for employees that outlines the specifics of the testing program, including which positions require testing, when testing will be conducted, consequences of failed tests, and accommodations that may be considered; this includes establishing an impairment or reasonable suspicion testing program if appropriate. Employers with a workplace drug testing process reliant on detecting nonpsychoactive cannabis metabolites for the purpose of hiring, firing or setting a condition of employment or discipline may also be required to update their policy in the future. Businesses must also ensure that employees are aware of the policy, and that managers and HR professionals understand the procedures, can identify signs of substance impairment, and know how to effectively respond to such circumstances.

<a href="https://admin.thompsonhine.com/wp-content/uploads/2022/12/Thompson-Hine-Business-Law-Update-Fall-2022.pdf#page=10" target="_blank" rel="noreferrer noopener">View or download this article in PDF format.</a>

<em>This newsletter may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.</em>

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In the Weeds: Marijuana Legalization and Drug Testing at Work

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