Excerpted from a Seyfarth Shaw LLP blog by Jennifer L. Mora
The latest Gallup poll shows 68% of Americans support cannabis legalization. Further, the rate of positive cannabis test results has jumped in the last decade. According to recent news reports, some large employers have stopped testing applicants for cannabis. As a result, other employers may be pondering whether to change their approach to an increasingly popular drug that is legal for medicinal or recreational use in most states.
States have been passing medical and recreational cannabis laws at an increasing pace. Years ago, when states first stepped foot in this arena, the laws and courts interpreting them allowed employers wide latitude in enforcing their drug-free workplace policies. But then courts in Connecticut and Massachusetts, for instance, issued game-changing decisions, holding either that the federal Controlled Substances Act (CSA) and state law do not conflict because the CSA does not prohibit employment of illegal drug users or that employers may have a duty to accommodate medical cannabis users. Since then, more states have been enacting laws and courts are issuing new decisions that make it more difficult for employers to enforce their drug-free workplace policies.
Employers are now asking whether they should forego cannabis tests altogether. Some issues to consider:
- • What does a positive test result even tell an employer? Because of how the body metabolizes the active compound in cannabis (tetrahydrocannabinol), it can be present days or weeks after use, creating false positives for intoxication and impairment. Experts do not yet agree on how much THC must be present to create impairment. Since some states prohibit employers from taking action against someone based solely on a positive test, employers are curious about the utility of a pre-employment cannabis test.
• Some employers must test for cannabis. Companies that are regulated by or do business with the federal government may be required to test for cannabis. Department of Transportation-regulated positions, such as commercial motor vehicle drivers, pilots and pipeline employees, are subject to mandatory drug screening. The DOT has issued separate bulletins reminding DOT-regulated employers and their employees that it “remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana,” even for medicinal use.
• Safety is an important consideration. The federal Occupational Safety and Health Act’s “general duty clause” mandates that employers furnish “a place of employment free from recognized hazards that are likely to cause death or serious physical harm to employees.” Further, according to the National Safety Council, employees who are impaired by cannabis present a safety risk in the workplace. The National Safety Council advises that employers adopt a zero-tolerance policy for cannabis use in safety-sensitive positions. That said, such a policy might conflict with state or local cannabis laws.
• Federal contractors must maintain a drug-free workplace. However, the federal Drug-Free Workplace Act (DFWA) is silent on drug testing. Instead, it merely requires that a government contractor have a clear drug-free workplace policy that reminds employees that possession, distribution, and use of controlled substances are prohibited in the workplace. Because the law focuses on possession and use in the workplace, and not drug testing, there arguably may be no conflict between the DFWA and a state or local cannabis law, making it possible for a government contractor to modify its drug testing practices while still complying with the DFWA.
• Testing may run afoul of state or local cannabis laws. New York and Montana became the latest states to make it unlawful for an employer to discriminate against an applicant or employee for using cannabis outside of work. Recently, the New York Department of Labor announced its position that all pre-employment cannabis tests are unlawful, with no exception for those applying to work in safety-sensitive positions. Philadelphia also prohibits pre-employment cannabis testing and Nevada prohibits an employer from taking action based on a positive cannabis test result.
• Accommodating medical cannabis use. Most states have medical cannabis laws, and some are allowing applicants and employees to sue under a state disability discrimination law, with a few courts even holding that an employer may have to consider accommodating cannabis use for medicinal purposes. While the Americans with Disabilities Act does not require employers to accommodate cannabis, employers must still engage in an interactive dialogue for the disability.
• Job market considerations. As public opinion has changed and more Americans are using cannabis for recreational or medicinal purposes, employers are finding it difficult to attract and retain talented workers. Employers faced with this dilemma might reconsider their stance on cannabis.
This rapidly evolving landscape presents challenges for employers, especially multi-state employers. Employers must balance several issues, including complying with conflicting federal, state, and local laws, maintaining a safe work environment, protecting applicants’ and employees’ privacy, and attracting quality talent. Employers considering discontinuing cannabis testing should work with experienced counsel to discuss and weigh the considerations.
For the full story, please click here.