To Test or Not to Test: Considerations for Employers Pondering the Future of Their Cannabis Testing Practices

Seyfarth Synopsis: The latest Gallup poll shows that 68% of Americans support cannabis legalization. Further, the rate of positive cannabis test results has jumped in the last decade. And according to recent news reports, some large employers have stopped testing job applicants for cannabis. As a result, other employers may be pondering whether to change their approach to an increasingly popular drug that is legal for medicinal or recreational use in most states. However, the decision may not be so easy. Here, we outline a variety of issues that might aid relevant stakeholders in weighing the practical and legal risks before making this important decision.

States have been passing medical and recreational cannabis laws at an increasing pace. Years ago, when states first stepped foot in this arena, the laws and some courts interpreting them allowed employers wide latitude in enforcing their drug-free workplace policies, such as in California and Colorado. But then courts in Connecticut and Massachusetts, for instance, issued game-changing decisions, holding either that the federal Controlled Substances Act (CSA) and state law do not conflict because the CSA does not prohibit employment of illegal drug users or that employers may have a duty to accommodate medical cannabis users under a state disability discrimination law. Since then, more states have been enacting new laws and courts are issuing new decisions that arguably make it more difficult for employers to enforce their drug-free workplace policies, especially if they have a large geographic footprint. Indeed, as we reported here, in 2021 alone, a few states passed cannabis laws with clear employment protections not yet seen in prior laws, most notably in New Jersey and New York.

Employers are now asking whether they should forego cannabis tests altogether. Here are some issues for employers and their stakeholders to consider:

• What does a positive test result even tell an employer? Because of how the body metabolizes the active compound in cannabis (tetrahydrocannabinol, or THC), it can, unlike alcohol, often present days or weeks after use, creating false positives for intoxication and/or impairment. Experts do not yet agree on how much THC must be present to create impairment. And since some states prohibit employers from taking action against someone based solely on a positive test result absent other indicia of impairment, employers are curious about the utility of a pre-employment cannabis test.
• Some employers must test for cannabis. Companies that are regulated by or do business with the federal government may be required to test for cannabis. Department of Transportation-regulated safety-sensitive positions, such as commercial motor vehicle drivers, pilots, and pipeline employees, are subject to mandatory alcohol and drug screening. The DOT has issued separate bulletins reminding DOT-regulated employers and their employees that it “remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana,” even for medicinal use. Government contractors may need to review their contracts to see if they mandate cannabis testing.
• Safety is an important consideration. The federal Occupational Safety and Health Act’s “general duty clause” mandates that employers furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.” Further, according to the National Safety Council, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in safety-sensitive positions, where an impairment will put the employee and others at risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero-tolerance policy for cannabis use in safety-sensitive positions. That said, such a policy might conflict with state or local cannabis laws that may not contain exemptions for safety-sensitive positions. Employers concerned about safety may wish to continue reasonable suspicion and post-accident cannabis testing even if they eliminate the drug from their pre-employment panel.
• Federal contractors must maintain a drug-free workplace. However, the federal Drug-Free Workplace Act (DFWA) is silent on drug testing. Instead, it merely requires that a government contractor have a clear drug-free workplace policy that reminds employees that possession, distribution, and use of controlled substances are prohibited in the workplace. Because the law focuses on possession and use in the workplace, and not drug testing, there arguably may be no conflict between the DFWA and a state or local cannabis law, making it possible for a government contractor to modify its drug testing practices while still complying with the DFWA.
• Testing may run afoul of state or local cannabis or “lawful activities” or “lawful products” laws. New York and Montana became the latest states to make it unlawful for an employer to discriminate against an applicant or employee for using cannabis outside of work. Recently, the New York Department of Labor announced its position that all pre-employment cannabis tests are unlawful, with no exception or consideration for those applying to work in safety-sensitive positions. Philadelphia also prohibits pre-employment cannabis testing and Nevada prohibits an employer from taking action based on a positive cannabis test result (both recognize exceptions for safety-sensitive jobs). California recently considered legislation banning most pre-employment cannabis testing and, thus, we can expect these types of restrictions to arise in other jurisdictions.
• Accommodating medical cannabis use. Most states have medical cannabis laws and, as mentioned above, some are allowing applicants and employees to sue under a state disability discrimination law, with a few courts even holding that an employer may have to consider accommodating cannabis use for medicinal purposes. And while the Americans with Disabilities Act does not require employers to accommodate cannabis, employers still must engage in an interactive dialogue for the disability.
• Job market considerations. As public opinion has changed and more Americans are using cannabis for either recreational or medicinal purposes, employers are finding it difficult to attract and retain talented workers. Employers faced with this dilemma might reconsider their stance on cannabis, especially for positions that do not pose a safety risk to others.

Conclusion

This rapidly evolving legal landscape presents new challenges for employers, especially multi-state employers. Employers must balance several competing issues, including complying with conflicting federal, state, and local laws, maintaining a safe work environment, protecting applicants’ and employees’ privacy and other legal rights, and attracting and retaining quality talent. Employers considering discontinuing cannabis testing should work with experienced counsel to discuss and weigh the various considerations discussed above. Employers also should review their workplace drug testing policies to be sure they comply with existing and soon to be effective state and local laws.