Employment drug testing is essential for detecting the presence of prescription and illicit drugs, allowing employers to address potential issues that may hinder job candidates and employees from performing their tasks safely. Proper utilization of employment drug screenings brings numerous advantages, such as curbing on-the-job substance abuse, minimizing absenteeism, reducing employee turnover, and mitigating liability risks.
Employment Drug Testing Policies
Employment drug testing policies are crucial for employers to comply with industry-specific regulations. For instance, the Omnibus Transportation Employee Testing Act of 1991 mandates drug and alcohol screening for safety-sensitive employees in aviation, trucking, railroads, mass transit, and other transportation sectors prior to employment.
Public sector employers and government contractors commonly conduct drug testing as well. Under the Drug-free Workplace Act of 1988, organizations receiving a federal government contract of $100,000 or more, or any federal grant, must establish a drug-free workplace policy. Although the Act does not explicitly require employment drug testing, it recognizes that it may be necessary to maintain a drug-free environment. This policy also entails developing and distributing a formal drug-free workplace policy statement, while ensuring employees are aware that they must promptly notify the employer if convicted of a criminal drug offense.
Whether your company is obligated to conduct employment drug testing or chooses to implement its own policy, it is crucial to be well-informed about the regulations surrounding drug screening in the workplace. Employment drug testing programs are governed by federal, state, and local laws, covering various aspects such as:
- Notification procedures for candidates and employees
- Prohibitions or requirements for testing
- Authorized testing facilities
- Permissible test types
- Applicable hiring process stages
- Consequences of a positive test result
- Employment denial based on drug test outcomes
- The possibility for candidates/employees to contest the results
Given this intricate network of laws regulating drug use and employment drug testing, staying up-to-date with the latest statutes is essential to ensure your employment drug testing policy remains compliant.
Recent and Pending Legislation
Employers must continuously update their drug testing policies to stay in line with evolving laws, a crucial step for those managing employees across multiple states. As you draft or revise your drug screening policy this year, it is vital to be aware that laws prohibiting pre-employment drug testing for marijuana are increasingly prevalent. This trend can be attributed primarily to the growing support for legalizing or decriminalizing the drug.
Additionally, various states and cities have recently passed laws legalizing marijuana for either recreational or medical use.
Here’s a concise overview of the recently enacted laws regarding marijuana testing, bearing in mind that certain exemptions exist for jobs involving public safety.
- ARIZONA – Employers cannot discriminate against or penalize individuals for having a medical marijuana card or testing positive for marijuana, except if the drug was used, possessed or caused impairment while on the job, as it may lead to loss of monetary or licensing-related benefits.
- CONNECTICUT – Employers have the right to perform marijuana tests, but they cannot deny employment or discriminate against qualifying users of medical marijuana based on a positive test result, unless specific conditions are met.
- MISSISSIPPI – Although medical cannabis is legal for certain individuals with qualifying standards, employers can still conduct drug tests and take adverse action against those who test positive due to medical cannabis.
- NEVADA – Employers are allowed to conduct pre-employment drug tests, but they cannot deny employment solely based on a positive result for marijuana.
- NEW YORK CITY – Pre-employment marijuana testing is not required for employment. However, current employees may still undergo marijuana screenings.
- NEW YORK STATE – Employers cannot test job candidates for marijuana, unless it is required by state or federal law or they risk losing federal funding or contracts.
- PHILADELPHIA – Employers are prohibited from mandating pre-employment marijuana testing. Current employees, though, can still be subject to marijuana testing.
- SOUTH DAKOTA – While medical cannabis is legal for certain users, employers can still establish drug-free workplace policies, including drug testing, as long as they comply with state and federal laws.
- VIRGINIA – Employers cannot terminate, discipline, or discriminate against employees who legally use cannabis oil for diagnosed conditions or diseases with a valid certification, unless it would violate federal law or jeopardize federal contracts or funding.
Pending Legislation
Pending legislation affecting workplace / employment drug testing can be quite complex due to the disparity between state and federal laws regarding marijuana. While many states have legalized or decriminalized marijuana, it remains illegal at the federal level. Nonetheless, there are several federal bills in the works that strive to address and potentially change this issue.
- The States Reform Act, introduced in 2021 but currently stalled in Congress, aims to remove marijuana and all cannabinoids from the federal Controlled Substances Act. This legislation would grant states the autonomy to establish their own regulations regarding marijuana use. Additionally, within one year of its passage, the Act would automatically expunge almost all federal marijuana arrests or convictions.
- The Marijuana Opportunity Reinvestment and Expungement (MORE) Act, passed by the House on April 1, 2022, awaits Senate approval. By eliminating cannabis from Schedule 1, the MORE Act seeks to facilitate the review and expungement of convictions for federal cannabis offenses. Notably, it proposes employing a retail cannabis sales tax to finance investments in communities disproportionately affected by the war on drugs.
- Building upon the MORE Act, the Cannabis Administrative and Opportunity (CAO) Act, which garnered attention in 2021, is expected to introduce a finalized draft before Congress recesses in August 2022. The CAO Act aims to automatically expunge past arrests and convictions for nonviolent federal cannabis offenses.
Several states and the District of Columbia are considering legislation that relates to drug testing.
In California, AB 2188 aims to prevent employers from discriminating against job applicants or employees based on their off-duty use of marijuana. However, impaired employees may still face consequences, and employers will still have the right to maintain a drug-free workplace.
In Louisiana, House Bill 988 is under consideration to prohibit discrimination against state government employees and job candidates who test positive for marijuana if it was recommended by a physician.
Lastly, in Washington D.C., bill B24-0109 seeks to extend protections enjoyed by government workers to private employers, prohibiting them from conducting pre-employment marijuana testing or taking adverse actions 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 pushing to put marijuana legalization on the ballot. Bills to legalize medical or recreational marijuana are being considered in Delaware, Kansas, North Carolina, and Rhode Island. In Maryland, legislators have voted to legalize recreational marijuana pending voter approval this November.
While workplace / employment drug testing laws typically focus on users of medical marijuana, California’s AB 2188 is part of a growing movement to safeguard the rights of recreational users. This includes their ability to use marijuana outside of work and during non-work hours without impacting their job performance.
The US Department of Transportation is also moving in this direction, proposing amendments to its marijuana testing requirements. Currently, DOT policy mandates urine testing, which can falsely label employees as impaired for up to 67 days after their last use of marijuana. The proposed change would enable DOT-regulated employers to use saliva marijuana testing, which provides more accurate results by detecting the substance within 24 hours of use.
Why Employers Should Not Abandon Drug Testing
The evolving laws surrounding workplace / employment drug testing can make it tempting for employers to forgo drug testing altogether. However, the benefits for both employers and employees far outweigh the challenges of ensuring compliant drug testing.
Drug testing not only helps identify job candidates whose drug use may hinder their job performance, but also prevents risks such as impaired employees caring for children, operating heavy machinery, or driving delivery vehicles. Moreover, it can identify employees who may be struggling with addiction, allowing your company to provide support for their recovery.
Given the increasing acceptance of marijuana use and stronger legal protections for workers, now is an opportune time to reassess your workplace / employment drug testing policies. In addition to meeting industry requirements and complying with federal, state, and local laws, you should also consider the type of company culture you wish to foster. A thoughtful approach to employment drug testing can strike the perfect balance between safeguarding your organization and attracting qualified job candidates.
Partnering with a trusted third-party provider, like ACI Background Checks, for your employment drug testing can streamline the process for your candidates, while also helping to ensure your screenings comply with all applicable laws and regulations.
Disclaimer: The resources provided on this website are intended solely for educational purposes and should not be construed as legal advice. We strongly recommend seeking guidance from your own legal counsel to address any specific questions or concerns regarding your practices and compliance with applicable laws.