Workplace Drug Testing: Can Employers Still Screen for Marijuana?

Employers that drug test typically use a five-panel screen that includes amphetamines, cocaine, marijuana, opiates and phencyclidine (PCP). Some employers, however, have dropped marijuana from the panel.

"More and more employers appear to be treating marijuana use like alcohol use and ignoring off-duty recreational use," said Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich.

"A growing number of states have taken their own steps to ease restrictions on employees' marijuana use for medicinal or recreational purposes off duty," Welch noted. So employers that need or want to continue testing or disciplining for marijuana use must know the applicable state laws, including the court decisions that interpret those rules.

The challenge for employers is keeping up with these laws, because so much is changing all the time, said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.

Here are some tips for employers to adapt to the changing legal landscape for marijuana use.

Carefully Review State Laws

All marijuana use is still illegal under federal law. Marijuana is listed as a Schedule I drug under the Controlled Substances Act, which means that it is deemed to have no medical value and a high potential for abuse.

California was the first state to legalize medical marijuana use in 1996, and more states legalized its use after President Barack Obama's administration eased enforcement efforts for adults who were growing or using marijuana in accordance with state laws. Although President Donald Trump's administration rescinded the Obama-era position, there hasn't been a ramp up in enforcement, and states continue to approve marijuana use.

Currently, 33 states have legalized medical use and 11 states and Washington, D.C., have given the green light for recreational use.

[Update: Voters in five states approved marijuana laws on Election Day (Nov. 3). In Arizona, Montana and New Jersey—where medicinal use is already permitted—voters approved recreational use. Mississippi voters decided to legalize medical marijuana in the state, and South Dakota voters agreed to legalize both recreational and medical use.]

Employers should note that even in states where marijuana use is legal, statutes and court decisions may provide different workplace protections. "This is a complex issue that will vary by state," said David Morrison, an attorney with Goldberg Kohn in Chicago.

Some state statutes specifically provide workplace protections—particularly for registered medical marijuana patients—and other state statutes make clear that employers do not have to accommodate any marijuana use, even when it's off duty. 

Court interpretations also vary. In some states, courts have held that federal law pre-empts state medical marijuana laws. In other states, courts have rejected that argument.

Additionally, states have different rules on when a positive marijuana test can be used to discipline or refuse to hire a worker and what steps employers have to take before they can take adverse employment actions.

"When an employer receives a positive test result for marijuana and the applicant or employee claims to be a medical marijuana user, the employer should avoid making any knee-jerk decisions," said Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles.

Instead, she said, the employer should first determine whether the state at issue provides employment protections to medical marijuana users and, if so, consider engaging in an interactive dialogue with the employee to determine what reasonable accommodations might be available short of allowing the employee to use or be impaired by medical marijuana at work.

Limits on Pre-Employment Screening

More states are starting to include express protections for applicants and employees who use cannabis products—presumably to fill in gaps in laws that have resulted in some employer-friendly court decisions, Mora said. "What we see most is the protection of off-duty use of marijuana."

Russo said that a notable trend that employers are seeing for 2020 is states limiting the use of pre-employment tests for marijuana use.

A New York City law will soon ban many employers from conducting any pre-employment marijuana tests, and a Nevada law now bars employers from taking adverse action based on a positive pre-employment marijuana test result.

Of course, there are exceptions to each of these laws, Mora noted. Both the New York City and Nevada laws have exceptions for safety-sensitive positions.

Focus on Reasonable Suspicion

Despite marijuana's complicated legal status, employers never have to tolerate on-the-job use or intoxication. "So reasonable-suspicion tests still make sense, because employees can't come to work impaired," Russo said.

Post-accident tests can pose some problems, she explained, because marijuana stays in a person's body for a long time after use. A person could vacation in Canada (where recreational use is legal), smoke weed or have an edible, come back to work, get tested either randomly or after an accident, and test positive despite never being impaired at work.  

"Now the employer is in a tough position," Russo noted. What should an employer do when the worker says, "I used it lawfully outside of work"? Employers that test post-accident must be prepared to respond. 

Morrison suggested that when employers are seeking to test only for impairment, they should train managers and supervisors on ways to reasonably observe when someone is working under the influence. Testing based on reasonable suspicion could be prompted by the following observations:

• Strong odors. 
• Questionable movements, twitching or staggering. 
• Dilated or watery eyes. 
• Flushed, confused or blank facial expressions.  
• Slurred speech or an inability to verbalize.
• Argumentative, irritable or drowsy behavior.
• Sleeping, falling unconscious or otherwise being nonresponsive.  

"If there is reasonable suspicion that an employee is currently under the influence of marijuana, then the company should explain to the employee what has been observed," Morrison said. Be sure to mention in the substance-abuse policy that the refusal to take a drug test can be grounds for termination, he added.  

Of course, he noted, reasonable suspicion may be grounds for discipline or discharge without a subsequent positive drug test, particularly for egregious behaviors and performance issues.