| By Nick Hartman & William J. Judge, JD, LL.M., Drug Screening Compliance Institute (DSCI)
State lawmakers have been very busy tackling cannabis issues in 2023, and the year is not over. As of this publication, the adult use of cannabis is permitted in 23 states. Thirty-seven states have authorized the medical use of cannabis.
A clear trend from recent cannabis laws brings employer limitations that we’ve never seen before. Adding to existing employer limitations surrounding medical marijuana laws, states, and municipalities are now implementing statutes that limit or prohibit employers from screening for cannabis (specifically non-psychoactive cannabis metabolites) or taking adverse employment actions against employees or applicants based on ‘impairment’ or an individual’s lawful, off-duty cannabis use.
These new legislative changes bring a unique complexity to workplace testing as they are being enacted before there is reasonable access to new cannabis screening solutions to comply with the language of the laws. No test or methodology is available today to determine the impairment of cannabis. Furthermore, standard drug testing for cannabis includes non-impairing metabolites.
Another challenge for employers is how the language of the laws in each state (or municipality) differs. Below is a review of the most recent legal changes to workplace drug and alcohol screening programs.
Delaware
Passed: 4/23/23
Effective: 4/23/23
On a positive note, when the companion pieces of legislation, House Bill 1 (HB 1) & House Bill 2 (HB 2), passed in April 2023, they added nothing new to employment screening limitations. Employers are already limited under the State’s medical marijuana law. In 2011, The Delaware Medical Marijuana Act[1] was passed and signed into law. Employers in Delaware “may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:”
(a) The person’s status as a cardholder; or
(b) A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”
Minnesota
Passed: 5/30/23
Effective: 8/1/23
Lawmakers in Minnesota should get an award (kidding) for constructing the most complicated legislation this year so far. In May of 2023, the new adult-use of cannabis law[2], Senate Bill 73 (SF 73), was passed and took effect on August 1st, 2023[3].
SF 73 consolidates the existing medical cannabis law with the new adult-use authorization and all other cannabis matters under the authority of the Office of Cannabis Management with the guidance of the Cannabis Advisory Council. In the process, provisions of the state’s drug testing statute were also amended, and new requirements were added—a complicated list of revisions.
Adult-Use of Cannabis
The new law authorizes adult use (21 years old or older) of cannabis. It revises the law[4], clarifying that employers may not discriminate against off-duty, off-premises use of “lawful consumable products,” including cannabis.
Employers are not required to permit or accommodate cannabis or cannabis product use, possession, impairment, sale, or transfer while an employee is working or while an employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment.
However, an employer may only enact and enforce written work rules prohibiting “cannabis flower and cannabis product use, possession, impairment, sale, or transfer, etc., while an employee is working or while an employee is on the company’s premises or operating the company’s vehicle, machinery, or equipment in a written policy.”
Additionally, the law amends numerous sections of the Minnesota Drug and Alcohol Testing in the Workplace Act[5]. It’s important to note that the law redefines the term “drug” removing marijuana, cannabis, or cannabis products. Drug testing no longer includes cannabis, but a new “Cannabis test” definition has been provided. Some key provisions of the new law are as follows:
181.950, Subd. 13. Safety-sensitive position. “Safety-sensitive position” means a job, including any supervisory or management position, in which an impairment caused by drug, alcohol, or cannabis usage would threaten the health or safety of any person.
181.951, Subd. 4. Random testing. An employer may request or require employees to undergo cannabis testing or drug and alcohol testing on a random selection basis only if:
(1) they are employed in safety-sensitive positions . . .
* * *
181.951, subd. 8 (new) Limitations on cannabis testing.
(a) An employer must not request or require a job applicant to undergo cannabis testing solely for the purpose of determining the presence or absence of cannabis as a condition of employment unless otherwise required by state or federal law.
(b) Unless otherwise required by state or federal law, an employer must not refuse to hire a job applicant solely because the job applicant submits to a cannabis test authorized by this section and the results of the test indicate the presence of cannabis.
(c) An employer must not request or require an employee or job applicant to undergo cannabis testing on an arbitrary or capricious basis.
(d) An employer may request or require an employee to undergo cannabis testing conducted by a [qualified laboratory] if the employer has a reasonable suspicion that while the employee is working or while the employee is on the employer’s premises or operating the employer’s vehicle, machinery, or equipment, the employee:
(1) as the result of consuming cannabis flower or a cannabis product, does not possess that clearness of intellect and control of self that the employee otherwise would have;
(2) has violated the employer’s written work rules prohibiting cannabis use, possession, impairment, sale, or transfer, provided that the work rules for cannabis and cannabis testing are in writing and in a written policy that contains the minimum information required in section 181.952; or
(3) has sustained a personal injury or has caused a work-related accident as provided in subdivision 5, clauses (3) and (4).
There are exceptions to the cannabis testing limitations under S.F. 73. A newly added subdivision 9, under section 181.951, provides the following:
“Subd. 9. Cannabis testing exceptions. For the following positions, cannabis and its metabolites are considered a drug and subject to the drug and alcohol testing provisions in sections 181.950 to 181.957:
(1) a safety-sensitive position, as defined in [in the law];
(2) a peace officer position;
(3) a firefighter position;
(4) a position requiring face-to-face care, training, education, supervision, counseling, consultation, or medical assistance to:
(i) children;
(ii) vulnerable adults; or
(iii) patients who receive health care services from a provider for the treatment, examination, or emergency care of a medical, psychiatric, or mental condition;
(5) a position requiring a commercial driver’s license or requiring an employee to operate a motor vehicle for which state or federal law requires drug or alcohol testing of a job applicant or an employee;
(6) a position of employment funded by a federal grant; or
(7) any other position for which state or federal law requires testing of a job applicant or an employee for cannabis.”
Medical Use of Cannabis
Back in 2014, SF 2470 authorized the medical use of cannabis, further limiting employer action. In 2022, Hemp-derived consumables (edibles, etc.) were legalized for adult use.
Employers will notice that SF 73 makes minimal edits to the existing medical use of cannabis law in Minnesota. However, employers must be careful because the medical use of cannabis law in Minnesota severely restricts employer action related to anti-discrimination protections for medical cannabis users. The relevant sections of the law are as follows:
152.32 Subd. 3.
* * *
(c) Unless a failure to do so would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon either of the following:
(1) the person’s status as a patient enrolled in the registry program . . .
or
(2) a patient’s positive drug test for cannabis components or metabolites unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.
(d) An employee who is required to undergo employer drug testing pursuant to section 181.953 may present verification of enrollment in the patient registry as part of the employee’s explanation under section 181.953, subdivision 6, which states in relevant part:
“(b) If an employee or job applicant tests positive for drug use, the employee must be given written notice of the right to explain the positive test and the employer may request that the employee or job applicant indicate any over-the-counter or prescription medication that the individual is currently taking or has recently taken and any other information relevant to the reliability of, or explanation for, a positive test result.”
Note: The impact of subdivision 3(d) is not yet known. If an employee is a qualified patient in the state’s medical cannabis program and tests positive for marijuana, subdivision 3(d) says verifying enrollment in the patient registry “may explain the result.” Does that mean the result would be treated as any other medical explanation (e.g., prescription) and reported to the employer as a negative?
This new adult use of cannabis law, combined with the medical use of cannabis law, adds to a complex patchwork of rules affecting workplace drug testing in Minnesota that employers must follow. Since 1987, a detailed mandatory drug and alcohol testing law has limited who, what, when, where, why, and how an employer conducts testing, and what disciplines can be imposed. For example, employers must have a written policy. Notice of the employer’s policy must be provided to all those affected, and employers must post notice of the policy in appropriate and conspicuous locations on the employer’s premises. Employers are also prohibited from terminating an individual after testing positive for the first time – they must be offered an opportunity for treatment, among many other rules.
California
Passed: 8/30/22
Effective: 1/1/24
On Sept. 18, 2022, Governor Newsom signed AB 2188. This new law limits employer action regarding job applicants and current employees based on cannabis test results.[6]
Beginning January 1, 2024, it will be unlawful for any employer[7] to discriminate against a person “in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:
(1) The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid pre-employment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
(2) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
Employees are not permitted to possess, use, or be impaired from the use of cannabis on the job or to affect the right or obligation of their employer to maintain a drug-free workplace or any obligations the employer has under federal rules.
Those in the building and construction trades, jobs regulated under federal law, grants, or contracts are exempt from this new law.
Washington
Passed: 5/9/23
Effective: 1/1/24
Washington voters approved the medical use of marijuana back in 1998. Then, in 2012, the use of marijuana was authorized for anyone 21 years old or older. Neither of these two laws has any negative impact on the workplace.[8] However, on May 9, 2023, Washington’s governor approved SB 5123, protecting an individual’s lawful off-duty use of cannabis[9].
Beginning January 1, 2024, it will be unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon:
(a) The person’s use of cannabis off the job and away from the workplace; or
(b) An employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
But the law goes on to provide . . .
“Nothing in this section:
(a) Prohibits an employer from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites;
(b) Affects the rights or obligations of an employer to maintain a drug and alcohol free workplace, or any other rights or obligations of an employer required by federal law or regulation; or
(c) Applies to testing for controlled substances other than preemployment, such as post-accident testing or testing because of a suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances.
This section does not apply to an applicant seeking:
(a) A position requiring a federal government background investigation or security clearance;
(b) A position with a general authority Washington law enforcement agency as defined in RCW 10.93.020;
(c) A position with a fire department, fire protection district, or regional fire protection service authority;
(d) A position as a first responder not included under (b) or (c) of this subsection, including a dispatcher position with a public or private 911 emergency communications system or a position responsible for the provision of emergency medical services;
(e) A position as a corrections officer with a jail, detention facility, or the Department of Corrections, including any position directly responsible for the custody, safety, and security of persons confined in those facilities;
(f) A position in the airline or aerospace industries; or
(g) A safety sensitive position for which impairment while working presents a substantial risk of death. Such safety sensitive positions must be identified by the employer prior to the applicant’s application for employment.”
Unlike California’s off-duty protections, which apply to all job applicants and current employees, SB 5123 in Washington only applies to job applicants (pre-employment testing). Federally regulated positions, federally funded projects, and federal contractors are exempt from the new law. Employers may require an applicant to be tested for a spectrum of controlled substances (including non-psychoactive cannabis metabolites) as long as the cannabis results are not provided to the employer.
Employer Takeaways
As these four examples show, with changing state laws pertaining to marijuana and other drugs, employers who desire a drug and alcohol free workplace must take greater care than ever before in implementing their testing programs. It is critical for employers to:
- Clearly understand the language contained within state-specific drug and alcohol screening laws and court and agency rulings that apply to their company in each state(s) (or potential municipalities) where they operate.
- Stay up to date with regulatory or court decisions, as these rules change often.
- Create, implement, and routinely review a written Drug-Free Workplace Policy that clearly states the company’s stance on prohibited drug & alcohol use (including cannabis) and the related consequences that will be imposed.
- Review when testing should occur, what test methodologies should be used, and what disciplines will be imposed.
- Design and implement sound processes and procedures that complement the language within the company policy. This will remove any guessing or potential mistakes when action needs to be taken in the “heat of the moment.”
- Provide managers and supervisors with comprehensive training on the company’s substance abuse policy and procedures as well as training to recognize the signs and symptoms of drug and alcohol use and the action steps they should take in such situations.
- Be sure to document and routinely review comprehensive job descriptions for each role within the company. This is especially crucial for job functions that are considered “safety-sensitive.” What are the essential functions of the job that are safety or security-sensitive? Employers should be prepared to defend why they defined these roles as such – in case they are ever challenged. Employers should also be prepared to engage in informed conversations with medical marijuana patients (especially those who test positive) to determine if their underlying medical condition(s) can be reasonably accommodated in the workplace, based on the essential functions of the job before taking any adverse action.
- Engage with the company’s drug screening provider, laboratory, and Medical Review Officer (MRO) to ensure the company’s testing program complies with changing laws. Can they provide cannabis test results that solely reflect delta-9 tetrahydrocannabinol (THC) or other psychoactive metabolites of cannabis? If not, the employer can’t act on cannabis test results in states with laws limiting employer action.
- As the trend for legal limitations will undoubtedly continue, it is important that the employer stays up to date with any new testing methodologies or cannabis screening solutions introduced to the workplace drug testing market.
[1] 16 Del. C. §4901A et seq.
[2] https://legiscan.com/MN/text/SF73/id/2786123
[3] Retail cannabis sales in MN are not expected to begin until 2025.
[4] Sec. 181.938, subd. 2
[5] Minn. Stat. §181.950 to 181.957
[6] Note the law does not prohibit or limit cannabis testing, it prohibits discrimination related to those test results. Why is this important? Because even if not in exempt business an employer could still make a case for not allowing a person to perform certain safety-sensitive tasks.
[7] Employer is defined over 100 times in the California Code. It is, therefore, important to make sure you are getting the correct definition. In this case, Government Code sec. 12950.1(h)(1) provides, “For purposes of this section only, “employer” means any person regularly employing five or more persons or regularly receiving the services of five or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.”
[8] In 2011 the Washington Supreme Court ruled that the Medical Use of Marijuana Act did not provide an employee fired for a positive drug test a cause of action for wrongful discharge or create a clear public policy that would prevent the employer from firing her. The Court said: “The MUMA does not prohibit an employer from discharging an employee for authorized use of medical marijuana.” Roe v. TeleTech Customer Care Management, LLC 171 Wn.2d 736, 257 P.3d 586 (June 9, 2011). Additionally, on April 19, 2013: the Washington State Human Rights Commission stated that it would decline to investigate any claim of discrimination involving the use of medical marijuana.
[9] https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bill%20Reports/Senate/5123-S.E%20SBR%20FBR%2023.pdf?q=20230830174739