Workplace Drug Testing: Legal Update

Employment drug testing can enhance workplace safety, reduce risk, and help employers make informed hiring decisions. With laws regarding drug legalization and drug screening in constant flux, it’s important for employers to stay up-to-date on the latest changes. Read on to learn whether recent, pending, and proposed legislation will require reviewing your company’s drug testing policies.

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Workplace drug testing can detect the presence of both prescription and illicit drugs, helping employers identify issues that might make it difficult for job candidates and employees to do their jobs safely. When used appropriately, employment drug screenings have many benefits–helping to prevent on-the-job drug use, minimizing absenteeism, reducing employee turnover, and lessening the risk of liability.

Drug Testing Policies

Drug testing may be necessary for employers to comply with industry-specific regulations. For example, the Omnibus Transportation Employee Testing Act of 1991 requires safety-sensitive employees in aviation, trucking, railroads, mass transit, and other transportation industries to undergo drug and alcohol screening at certain points, including prior to employment.

Public sector employers or government contractors often perform drug testing. The Drug-free Workplace Act of 1988 requires any organization receiving a federal government contract of $100,000 or more, or receiving a federal grant of any amount, to implement a drug-free workplace policy. ​​While the Act doesn’t require drug testing, it recognizes that drug testing may be necessary to maintain a drug-free workplace. This policy also includes developing and distributing a formal drug-free workplace policy statement and informing all employees that they must notify the employer within five calendar days if convicted of a criminal drug violation.

Whether your company is required to perform drug testing or chooses to implement its own policy, it’s important to be aware of the various regulations concerning drug screening in the workplace. Federal,  state, and local laws regulating employment drug testing govern many aspects of employment drug screening programs, including:

• How and when candidates and employees must be notified of testing
• When testing is prohibited or required
• What type of facility can test
• What kinds of tests can be used
• What stage in the hiring process testing can be conducted
• What happens if an employee or candidate tests positive
• Whether employment can be denied on the basis of a drug test result
• Whether candidates/employees can contest the results

Due to this complex web of laws regulating drug use and drug testing, it is essential to stay up-to-date with the latest statutes to ensure your employment drug testing policy is compliant.

Recent and Pending Legislation

Employers should continually update their drug testing policies to keep pace with changing laws. This is especially important for those with employees in multiple states. When drafting or revising your drug screening policy this year, be aware that laws prohibiting pre-employment drug testing for marijuana are on the rise, largely due to mounting support for legalizing or decriminalizing the drug.

Recent state and city restrictions on employment drug testing

The following states and cities have recently legalized marijuana in some form, either for recreational or medical use. Here’s a brief rundown of recently enacted laws regarding marijuana testing. (Note that all the laws make exemptions in certain situations, such as jobs involving public safety.)

• ARIZONA: Employers cannot discriminate against or otherwise penalize a job candidate or employee for having a medical marijuana card or testing positive for marijuana, unless the person used, possessed, or was impaired by the drug while on the job. Exceptions are made if hiring or retaining the person could cause the company to lose monetary or licensing-related benefits.
• CONNECTICUT: Employers can test for marijuana but cannot refuse employment or otherwise discriminate against qualifying users of medical marijuana on the basis of a positive test result, unless certain conditions are met.
• MISSISSIPPI: Medical cannabis has been legalized for certain individuals with qualified standards. However, employers can still test for drugs and can deny employment or take adverse action against an individual who tests positive due to medical cannabis.
• NEVADA: Although employers can conduct pre-employment drug tests, they cannot deny employment to a job candidate based on testing positive for marijuana.
• NEW YORK CITY: Employers cannot make pre-employment marijuana testing a requirement for employment. (Current employees may still be screened for marijuana.)
• NEW YORK STATE: Employers cannot test job candidates for marijuana unless it’s required by state or federal law or failing to test would cause the employer to lose federal funding or a federal contract.
• PHILADELPHIA: Employers are prohibited from requiring pre-employment marijuana testing for employment. (Current employees can still be tested for marijuana.)
• SOUTH DAKOTA: Although medical cannabis is now legal for certain users, employers can still implement a drug-free workplace policy. This may include drug testing, if it complies with state and federal law.
• VIRGINIA: Employers cannot terminate, discipline, or discriminate against an employee who legally uses cannabis oil based on a valid certification from a practitioner for the treatment of a diagnosed condition or disease. Exemptions are made if failing to act would violate federal law or cause the employer to lose a federal contract or funding.

Pending legislation affecting workplace drug testing

One reason workplace drug testing laws are so complicated is that, despite legalization or decriminalization in most states, marijuana remains illegal on the federal level. Several federal bills aim to change that:

• The States Reform Act was introduced in 2021, but is stalled in Congress. It would remove marijuana and all cannabinoids from the federal Controlled Substances Act and allow states to set their own rules for marijuana use. It would also automatically expunge nearly all federal marijuana arrests or convictions within one year of its passage.
• The Marijuana Opportunity Reinvestment and Expungement (MORE) Act passed the House on April 1, 2022 and now awaits Senate approval.  Along with removing cannabis from Schedule 1, it aims to help review and expunge convictions for federal cannabis offenses and use a retail cannabis sales tax to fund investments in communities most affected by the war on drugs.
• The Cannabis Administrative and Opportunity (CAO) Act expands on the MORE Act by automatically expunging prior arrests and convictions for nonviolent federal cannabis offenses. It  was presented for comment in 2021; a final draft of the CAO Act will be introduced before Congress recesses in August 2022.

Several states and the District of Columbia also have pending legislation related to drug testing:

• California: AB 2188 would prohibit employers from discriminating against job applicants or employees based on their use of marijuana off the job. Employees who are impaired on the job could still face consequences, and employers would still have the right to maintain a drug-free workplace.
• Louisiana: House Bill 988, currently under consideration, would prohibit state government employees and job candidates from discrimination based on a positive marijuana test if the drug was recommended by a physician.
• Washington D.C.: B24-0109 would expand on protections government workers currently enjoy to prohibit private employers from requiring pre-employment marijuana testing or taking adverse action against employees who use medical cannabis.

With state primaries and midterm elections on the horizon, voters in several states, including Arkansas, Missouri, Nebraska, North Dakota, Oklahoma, and South Dakota, are attempting to put marijuana legalization on the ballot. Bills that would legalize either medical or recreational marijuana are under consideration in Delaware, Kansas, North Carolina, and Rhode Island. Meanwhile, Maryland legislators have voted to legalize recreational marijuana, if voters approve doing so this November.

While most workplace drug testing laws focus on users of medical marijuana, California’s AB 2188 may be part of a growing movement toward protecting the rights of recreational users to use marijuana outside work and at times when it won’t affect their work performance, such as on their days off.

Even the US Department of Transportation has taken steps in this direction by proposing amendments to its marijuana testing requirements; DOT policy currently requires urine testing. Because it can deliver a positive result for up to 67 days after a person last used marijuana, urine testing can falsely label employees as impaired on the job. The proposed change would allow DOT-regulated employers to use saliva marijuana testing, which detects the substance only up to 24 hours after use, for more accurate results.

Why Employers Should Not Abandon Drug Testing

The complexity of evolving laws regarding workplace drug testing may tempt employers to set aside drug testing altogether. While ensuring compliant drug testing can be a challenge, the benefits for both employers and employees outweigh the hurdles.

Drug testing can reveal job candidates whose drug use may make it difficult for them to fulfill the duties of the job. It can help prevent risks such as impaired employees caring for children, driving delivery vehicles or operating heavy machinery. It can also detect employees who may need help with addiction, enabling your company to help support their recovery.

Trends toward greater acceptance of marijuana use and stronger legal protections for workers make now a good time to revisit your existing workplace drug policies. In addition to complying with industry requirements and federal, state, and local laws, you’ll need to think about the kind of company culture you want to create. A thoughtful approach to drug testing can help you strike the perfect balance between protecting your organization and attracting qualified job candidates.

GoodHire’s Drug Testing Options Meet Your Needs

Partnering with a trusted third-party provider, like GoodHire, for your workplace drug testing can streamline the process for your candidates, while also helping to ensure your screenings comply with all applicable laws and regulations.

GoodHire offers a comprehensive drug testing suite, including an option that excludes marijuana. All lab results are verified by Medical Review Officers for the highest accuracy and our compliance experts stay up-to-date on legislation affecting employment drug testing, enabling you to mitigate risk. For a complete list of our drug testing capabilities, contact our sales team.

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