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5.6.21 – ISHN

Drug testing in the workplace, especially in the manufacturing industry, has become a common part of pre-employment screening and health/safety measures in the workplace, which may include random, post-accident, and reasonable-suspicion testing. That being said, many employers are re-thinking their testing approach in light of legal changes and societal shifts related to drug use and, more specifically, marijuana use. In recent years, as the number of states legalizing medical and/or recreational marijuana has grown, manufacturers have been grappling with how to comply with their legal obligations while also balancing the need to maintain a safe workplace, attract qualified applicants, and avoid potentially unnecessary pre-hire screening.

In recent years, there has been a growing shift in the United States in favor of legalizing marijuana use for medical and/or recreational purposes. To date, 36 states and the District of Columbia have legalized medical marijuana, and 17 states and the District of Columbia have legalized marijuana for recreational purposes; federal law, however, has not changed. In 2019, New York City went even further and passed a law prohibiting employers from conducting pre-employment drug testing for marijuana and tetrahydrocannabinols (THC) with exceptions, including for safety-related positions, among others. Since then, several other states and, recently, one municipality have passed or considered passing similar laws.

While the recent and anticipated changes in pre-employment drug testing laws arguably concern workplace-related conduct and implications, there are also both old and new laws prohibiting employers from making employment decisions based on lawful off-duty conduct, which can include marijuana use. For example, Connecticut, Massachusetts, New York and Rhode Island, have enacted certain employment protections for off-duty use of medical marijuana for valid medical reasons. Other states, such as New York, generally prohibit discrimination against employees for lawful, off-duty conduct, which in New York explicitly includes most recreational marijuana use. Accordingly, in states where recreational marijuana is legal, employers might be prohibited from making adverse employment decisions in response to a drug test that is positive for marijuana that was consumed off-duty. Complicating matters is that, despite this new trend, there are many industries wherein drug testing for certain employees is legally required or critically necessary, including as it relates to safety- or security-sensitive positions (e.g., transportation, manufacturing involving machinery and power tools, etc.), many of which fall under exceptions to the various laws being passed.

Based on these changes in state and local laws, many employers are re-thinking whether marijuana should be included as part of workplace drug testing in some or all of the states/municipalities in which they do business, whether pre-employment drug testing is needed at all, and how to respond to positive test results for marijuana. These decisions often hinge on whether the positions at issue are safety-sensitive or governed by laws that may require a specific drug testing program, and on the particular workforce. Regardless of their approach to drug testing, employers should ensure that employees are not under the influence of drugs or alcohol while they are working and that managers are trained to identify when drug/alcohol testing may be required based on reasonable suspicion.

Employers may wish to consider consulting competent legal counsel to understand the legal obligations in the states and municipalities where they conduct business and the practical considerations that may impact their decisions related to workplace drug-testing programs.