Employers Struggle With Cross-State Marijuana Legalization and Its Impact on Employment Drug Testing Practices

Marijuana continues to become more and more accessible throughout the US. With more states legalizing the drug, what should employers expect?
LINDSAY HASKELL
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Study finds that the legalization of cannabis leaves companies split on how to navigate cross-state pre-employment drug testing

The results of a recent Health Street survey illuminate the ongoing, nationwide confusion regarding how marijuana legalization laws impact workplace drug policies, especially in an economy that relies increasingly on remote employees and cross-state hiring decisions. 

Health Street surveyed 592 participants from locations around the country. Opinions on how companies should deal with cross-state marijuana usage laws proved highly divided. 

One question asked whether it would be fair for a company in a state where medical marijuana is not legal to rescind a job offer of an employee who lives in a state where marijuana use is permitted, has a prescription, and fails a drug test as a result of it. 

44% of the respondents thought rescinding the job offer would be fair, while 55% did not — an almost even split down the middle. 

The dichotomy speaks to a larger lack of national consensus on how to handle cannabis legalization in an employment context. Alarmingly, the lack of clarity is putting employers at risk for discrimination claims and legal liability.

How Respondents Reacted to Cross-State Pre-Employment Drug Testing

When questioned whether a company should refuse to hire someone who uses medical marijuana, respondents had a range of varying opinions:

“What an employee does before and after work is their own business. But if they come to work high or are getting high at work then that is an issue.”

“That person should look for work within his or her own state or in a state that does allow for such use. “

“I think people that have a disability have a right to use medical marijuana if they use it responsibly at work.”

“If a doctor prescribes someone oxycontin and they fail a test for it, the company can not do anything about it. Should be the same for marijuana. I would sue.”

“But marijuana is legal, especially for medicinal purposes, I don’t agree with drug testing. I see it as no different than using alcohol recreationally.”

“Marijuana is better than alcohol and should be treated like alcohol when thinking about job hiring.”

“I don’t believe the testing should be necessary. I understand the reason for pre-employment testing, perhaps for other substances but say for example someone is prescribed painkillers, they would indicate that along with proof of prescription before their test. But this drug can still be abused. or someone could go get drunk on the job.”

“As long as the use does not affect the safety of others, it shouldn’t be allowed to be considered as part of the employment process.”

“They should not have the power to reject someone just for using a drug to take care of medical reasons. That is the same thing as saying you’re not going to hire someone because of their skin color.”

“Look for thousands of years, people have worked jobs outside of their homes, in pain or not. Those people didn’t smoke marijuana or if they did, it was unknown. Today’s world needs clear-headed folks to do their jobs, someone will be behind them that has a clear head to take it. If the worker is in pain, I’m sure there are other jobs out there to accommodate them. I’m just saying lots of folks have done jobs with pain and somehow made it through.”

“I’m against random drug testing, punitive drug laws, and the criminalization of marijuana.”

“People are having to make a choice as to where the live based on their Marijuana use which is crazy. In order to fully legalize it we need to create testing so we know for SURE whether a person is under the influence at that MOMENT. There are times in life and at work where you should be punished if you are under the influence and without the CORRECT testing at this moment we are not able to accurately tell.”

Regional Drug Testing Laws for Medical and Recreational Cannabis

Getting a better understanding of the legal drug testing landscape surrounding marijuana can empower employers to establish pre-employment testing and hiring policies. More accurate information can help protect both the company and the staff. Here’s an overview of how certain states enforce their marijuana legalization laws in regards to employers:  

Recreational Cannabis Testing Laws

In the 10 states that have legalized recreational cannabis use, employers maintain the right to test for marijuana and take action against employees who test positive.

They do not have to differentiate between off-duty and on-the-job use in making these decisions, which, in any event, can’t be done with current testing technology. They can continue to establish and follow zero-tolerance, drug-free workplace policies despite legalization.

Medical Marijuana Employment Rights and Protections

In 12 of the 33 applicable states, medical marijuana patients have additional protections by law that employers must abide by in setting drug testing policies.

When hiring employees in those states, you must ensure you do not discriminate against them for having a medical marijuana card nor fire them for testing positive for cannabis. However, you do have the right to fire workers who consume cannabis during work hours.  Proving it is another matter.

Navigating Cross-State Testing

Marijuana remains illegal under federal law and remains listed as a Schedule 1 Substance by the DEA. This pits permissive state laws against the federal government.

Confusion arises for employers, particularly when making cross-state hiring decisions. What should employers do if a job candidate is a marijuana user based in a state that permits it, but the company is domiciled in another state where it is prohibited?

If you’re an employer dealing with cross-state hiring, it’s imperative that you think this through before crafting your drug testing policies. 

It’s important for employers navigating these murky waters to work with Medical Review Officers (MROs) who understand how to report marijuana use, particularly when the user has a prescription. These processes help ensure that your drug-free workplace policies do not leave you open to accusations of discrimination based on disability. 

One option for employers is leaving marijuana out of your testing altogether. You can work with a drug screening company like Health Street, which recently rolled out a slate of standard drug testing panels that exclude marijuana. 

 Berke, Jeremy. “Illinois Is Poised to Become the First State to Legalize Marijuana Sales through the Legislature – Here Are All the States Where Marijuana Is Legal.” Business Insider, Business Insider, 5 June 2019, http:// www.businessinsider.com/legal-marijuana-states-2018-1

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