Cannabis and the Workplace

July 22, 2022
Cannabis and the Workplace

[Ensure that you and your organization consider all factors when drafting a drug-free workplace policy with our checklist.]

Can companies drug test for cannabis in legal states?

As many state laws have grown increasingly permissive of both medical and recreational cannabis use, workplace drug testing laws have also evolved.

One of the most common labor and employment questions is: if cannabis, or marijuana, is legal, can employers drug test? The answer: usually. While a few states that allow legal cannabis place limits on testing employees or applicants, or protect employees from discrimination based on their legal drug use, most allow employers to test for cannabis use.

In New York, for example, where recreational and medical cannabis use are legal, employers are prohibited from testing current and prospective employees. Other legal states, such as Nevada, prohibit job denial based on a positive cannabis test result.

On the other hand, in a state like Georgia, which still deems cannabis an illegal drug, employers may uphold zero-tolerance drug policies with cannabis testing. Companies that employ people in multiple states will have to establish policies that account for wildly differing treatment of cannabis use.

Employers must also consider state privacy laws. As an example, Illinois’ reclassification of cannabis as a “lawful product” holds implications for the state’s Right to Privacy in the Workplace Act, which prohibits employers from discriminating against employees for off-duty “use of lawful products.”

How does federal law impact workplace drug policies?

In addition to varying state laws, employers must contend with complexities due to federal illegality. Even in states where recreational cannabis use is legal, under federal law cannabis users are not qualified to operate commercial vehicles.

Additionally, the Drug-Free Workplace Act of 1988 requires certain federal contractors and all federal grantees to provide a drug-free workplace as a precondition of receiving a contract or grant from a federal agency.

The Drug-Free Workplace Act considers cannabis to be a “controlled substance,” alongside other drugs such as heroin and methadone, and as such, subject to the rules under the Act. See Bloomberg Law’s checklist for Drug-Free Workplace Act compliance for more details.

How should employers approach cannabis-related impairment in the workplace?

Rather than testing for general use, employers can seek to establish a monitoring system to detect impairment in the workplace. This approach also presents challenges. Given that cannabis can linger in the system even after 30 days of non-use, drug testing is not a reliable indicator of active impairment from cannabis.

In Bloomberg Law’s May 2022 Leadership Forum “Covid-19 and the Workplace: Navigating the Changing Legal Risks,” Douglas L. Parker, assistant secretary of labor for occupational safety and health, said workplace drug testing policy should focus on work-related hazards.

“My hope is that, as things progress, there’ll be a technological fix that will allow us to determine if a worker is under the influence, the way that we’re able to do that with alcohol,” Parker said, “That technology doesn’t really exist with respect to cannabis at this time.”

He added that during accident investigations, it is “critically important” to continue to investigate more deeply, even after a positive drug test of an involved worker.

“That’s not the time to declare mission accomplished,” he advised. “There should be a full investigation determining the causal factors.”

Faced with these variables, employers may wish to establish new cannabis screening practices and train workers to identify signs of impairment. In this regard, workplace policies that govern testing for alcohol impairment in the workplace could offer guidance, said Dori Goldstein, Bloomberg Law Analysis assistant team lead.

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