Off-duty marijuana protections an opportunity to revisit drug-testing policies
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Legalise marijuana
Sean Malley
Sean Malley is a shareholder at Littler Mendelson with a focus on employment discrimination, federal and state wage and hour laws, and whistleblowing and retaliation

Many employers are revisiting their drug-testing policies in light of new workplace protections that have accompanied the recent wave of marijuana legalisation laws in the US. Since 2012, 19 states, including Washington DC, have legalised the recreational use of marijuana, with seven of those states having done so in just the past year. Additionally, 37 states now permit some form of medical marijuana use.

Arising from this rapidly changing landscape are a crop of new marijuana-related protections for employees. Maine, Montana, New York, and soon New Jersey, and to a lesser extent Illinois and Connecticut, all prohibit adverse actions against employees or applicants who consume marijuana during non-working hours. These protections bring significant new liability concerns for employers who conduct drug tests, even though the new laws do not prohibit marijuana testing outright.

Specifically, a positive pre-employment marijuana test in these “off-duty” states is functionally useless. The employer cannot make a hiring decision based on off-duty use, and marijuana tests merely indicate the individual used the drug at some point during the 30 days preceding the screening. But beyond the waning utility of these test results, the employer’s knowledge of the results themselves also presents a clear liability risk in these off-duty states.

For example, if the employer decides not to hire the individual, or later takes other action against the employee, merely having a record of the positive result gives the employee a potential new discrimination claim. The employer must now demonstrate the employment decision had nothing to do with the positive test result.

This development has prompted many employers to rethink the utility of screening for marijuana at all. The prospect of doing away with these tests has also been driven by growing concerns that managers and hiring personnel will not properly handle positive tests for certified medical marijuana users, who now enjoy significant workplace protections in the majority of US states. Other employers have had to reconsider their marijuana testing policies because of entirely different concerns that such policies are effectively shrinking the pool of potential job applicants.

Transitions to new testing practices present significant costs and logistical hurdles, particularly for large employers operating in multiple jurisdictions. Contracts with testing laboratories often must be renegotiated or ended prematurely; policies need to be rewritten; and training must be revised.

Companies must also balance the new risks of marijuana testing in the growing list of off-duty states with the efficiencies of maintaining a uniform testing policy in all states where they operate. Company responses have run the gamut from leaving current practices untouched, reducing the drug-screening panel to eliminate marijuana, or doing away with drug testing altogether – or some combination of the three in different states. The largest trend appears to be removing marijuana from the drug-screening panel in all locations, while leaving tests for other substances in place.

There are important exceptions that all employers should understand about these new protections and the related protections afforded to medical marijuana users. First, none of these protections affect policies prohibiting the use of, or impairment by, marijuana during work time, in the workplace, or while operating work equipment or vehicles.

Second, the protections do not apply if compliance would jeopardise federal contracts or federal funding. Be aware, however, that most federal contracts do not actually require testing or implicate off-duty use, including contracts that merely reference the federal Drug-Free Workplace Act.

Third, employees that are subject to mandatory drug testing under federal regulations such as from the Department of Transportation or Federal Railway Administration, are unaffected by these new state protections and should continue to be tested under those regulations as before.

Finally, reasonable-suspicion testing should be implemented with caution in off-duty states to ensure that resulting employment decisions are based on specific, observable, and articulable signs of on-duty impairment, with the results of a reasonable-suspicion test taking a secondary, corroborative role in the decision-making process.

Employers should consult with their counsel to understand the potential risks that their current drug policies and practices may present under these new off-duty employee protections and under the various protections afforded certified medical marijuana users.