Let’s face it: Medical marijuana is not going away. More states are legalizing it, and some states have already legalized recreational marijuana as well.. At the same time, marijuana remains illegal under federal law. Many employers run pre-employment drug screening, and many–at least up until recently–would refuse to hire anyone testing positive for any illegal drugs, including marijuana, whether or not the candidate had a state-issued prescription card. I’ve posted previously about medical marijuana here. What’s changed? A lot, actually. More states have passed laws restricting when and how an employer can either test for drugs, and particularly, whether or when an employer can make any sort of employment decisions that involve an employee’s use of medical marijuana. Now some states and localities are limiting an employer’s right to make any adverse decisions about employees who use recreational marijuana, adding even more confusion to an already hazy area for employers. (See what I did there?) Let’s look at 2 recent or expected changes and the takeaways for employers. Last month, New York City became the first to enact a law prohibiting pre-employment drug testing for the presence of cannabis or tetrahydrocannabinol. Under the law, it will be an unlawful, discriminatory practice for any employer “to submit to testing for the presence of any tetrahydrocannabinols or marijuana in such prospective employee’s system as a condition of employment.” The law, however, does not enact a blanket ban on all such testing or on all restrictions of candidate or employee marijuana use. In general there is a carve-out for certain safety-sensitive positions, including, without limitation:
- Positions in law enforcement;
- Certain construction positions;
- Positions requiring a commercial driver’s license;
- Positions requiring the supervision or care of children, medical patients or vulnerable persons; or
- Positions with the potential to significantly impact the health or safety of other employees or members of the public.
The law does not apply to drug testing required by federal, state, city or other local departments of transportation, federal contracts; any federal or state law that requires drug testing of prospective employees for safety or security purposes; or a valid collective bargaining agreement. The law will take effect on May 10, 2020. In April, New Mexico, expanding on its medical marijuana law, the Lynn and Erin Compassionate Use Act, passed legislation that, among other things, will prohibit employers from taking any “adverse employment action against an applicant or an employee based on conduct allowed under” the law, including refusal to hire, terminating, or taking any other adverse action against a candidate/employee solely based on the his/her having a prescription for and/or using medical marijuana. Before I list the exceptions I want to point out one perhaps subtle but important point: The prohibition is against adverse actions based solely on the applicant/employee’s status as a medical marijuana prescription holder/user. Presumably if the decision or action is also based in part on other considerations, this law will not apply. The prohibitions do not apply, if:
- the employer could lose monetary or licensing-related benefits under federal law or federal regulations for hiring or employing individuals who use marijuana or test positive for marijuana use; and
- the employee works in a “safety-sensitive position,” defined as “a position where performance by a person under the influence of drugs or alcohol would pose an immediate or direct threat of injury or death to that person or another.”; or
- employees use or are impaired by medical marijuana while working, during “hours of employment,” or while on the premises of the employer, even if the employee has a prescription for medical marijuana.
These exceptions are perhaps a bit narrower than those under the New York City law, but the idea is similar. Federal regulations trump state and local laws (any pun only slightly intended). This law takes effect July 1, 2019. Finally, Nevada just passed even more expansive legislation, which, starting in 2020 will prohibit employers from refusing to hire any candidate that tests positive for marijuana, medical or recreational. If an employer requires a new hire to submit to drug screening the new employee has the right to submit to an additional screening test to rebut the results, and the employer must accept that follow-up test. This law too, has similar exceptions to the others. It does not apply to firefighters, EMT’s employers who operate a motor vehicle, or those who, as determined by the employer, could adversely affect others’ safety. (I think we can expect this last exception to be used as a catch-all that could even undercut the above prohibitions somewhat). What are our takeaways then? First, as you can see, since there is no federal law legalizing either medical or recreational marijuana, there is and will be variation from one state or locality to another. State laws will preempt local laws in the same state, but the bottom line here is that if you employ people in more than one location, you will need to be aware of and comply with the laws in each location where you have people working. Second, if you are going to conduct any drug screening, do so after extending a conditional job offer, and in accordance with a written policy that you apply consistently to similarly situated candidates and employees. If you deviate, make sure you have a valid reason, and document it — and, of course, make sure you comply with all applicable laws. Third, make sure you either have a legal reason or legitimate business reason for any drug screening and any marijuana-related restrictions. Finally, and, as always, speak with competent, friendly employment counsel to help you weed out practices that could run afoul of these laws. (I’m sorry I just couldn’t resist that one!) That’s all I’ve got for now… Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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