April 17, 2019 – In a groundbreaking measure, the New York City Council has passed a bill barring most employers from testing job applicants for marijuana use.
While still considered a Schedule I illegal drug under the Title 21 United States Code Controlled Substances Act, to date, 35 states have legalized the use of marijuana in some capacity. These pro-cannabis laws not only mark a nation-wide shift in culture but also create a brand-new dilemma for employers. Further complicating how companies and HR departments handle drug screening, (and employees or candidates who test positive for marijuana,) is the proposed legislation making marijuana legal under federal law.
- Recreational marijuana: Alaska, California, Colorado, Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington, and Washington DC
- Medical marijuana: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, Washington DC, and West Virginia
- Employee protection laws: Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania, Rhode Island, Washington DC, and West Virginia.
Zero-Tolerance for Zero-Tolerance
For many companies, maintaining a zero-tolerance drug policy is standard-operating-procedure. But, as many employers are discovering, this seemingly straightforward approach is now fraught with complex considerations:
- Do we need to update our drug-use policies to accommodate marijuana users?
- Do we allow medical marijuana use, but not recreational?
- Can employees who test positive for marijuana be fired?
- Can we allow marijuana use yet fire for use of other substances?
While the answers may vary somewhat by state, there are typically three classifications under which employers fall:
- States requiring no accommodation for marijuana use
- States requiring accommodation for medical use
- Maine – protects all marijuana use unless the business is federally regulated or when being under the influence affects safety
Regardless of location, companies should create – or consolidate their existing substance-abuse policies – into one clear, consistent, and enforceable drug-screening policy tailored to industry, state laws, and testing requirements that specifies:
- Under what circumstances employees are tested
- Prohibited substances
- When and where testing takes place
- Employees’ rights and responsibilities
- The timeframe in which testing must take place after notification
- Medical exceptions
- Consequences of a failed test
These days, companies must remain aware that a failed drug test and subsequent firing (or denial of hire) – though justified according to the posted substance abuse policy – could be reversed in court resulting in a judgment for back wages, punitive damages, and attorney fees.
A woman who applied to be a summer intern at a company, in 2014, sued and won after they refused to hire her for being a registered medical marijuana user.
“This decision sends a strong message that people with disabilities simply cannot be denied equal employment opportunities because of the medication they take,” said an attorney for the ACLU [American Civil Liberties Union.] “If employers were permitted to discriminate against those using medical marijuana, then the good work done by those to enact the law will be completely undone. The judge’s decision makes clear that this law is not an empty promise.”
While awaiting official guidance from the EEOC [Equal Employment Opportunity Commission] on marijuana use and assessment under the ADA [Americans with Disabilities Act,] the best advice for companies faced with an employee or candidate who tests positive for marijuana is to start a conversation. Instead of a zero-tolerance policy, handle marijuana use as you might criminal history, on an individual basis. Assess the employee or candidate holistically, taking into consideration their entire background and usual conduct, before making the decision to terminate or deny employment.