Seyfarth Synopsis: Every year, employers find themselves revisiting their marijuana and drug testing policies to account for newly enacted laws at the state and local level. Now is no different. Below are some highlights of what happened in 2021.
On June 22, 2021, Connecticut legalized recreational marijuana use by adults 21 years and older. Although provisions relating to possession are effective now, the employment-related provisions are not effective until July 1, 2022. At that time, many employers will be prohibited from taking certain actions in the absence of clear policies addressing marijuana use or evidence of impairment. With a clear and compliant policy, employers can, among other things, prohibit employees from being under the influence of, using or possessing marijuana while they are working and while performing their job duties or on company premises. If an employer has in place or implements a policy that prohibits employee use or possession of marijuana and, such policy is made available to employees in advance, the employer can take action against an employee who uses recreational marijuana or tests positive for it as part of reasonable suspicion and random drug testing. In the case of a job applicant, an employer can rescind a job offer if an applicant tests positive for recreational marijuana so long as the employer makes the policy available to the applicant at the time of offer.
There are numerous positions and industries exempt from the law. And of course, employers still must be mindful of the state law protections currently available to medical marijuana users.
On April 12, 2021, New Mexico saw the legalization of recreational marijuana. While the law does not provide employment protections to recreational users and, in fact, expressly affords several protections to employers, medical marijuana users have certain protections under existing state law.
The “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act,” which was signed on February 22, 2021, received quite a bit of attention from employers largely because it arguably prohibits employers from rejecting a job applicant who tests positive for marijuana (unless a narrow exception exists, such as positions subject to Part 40 DOT-mandated drug testing).
While the new law, among other things, allows employers to test current employees for marijuana, the law limits an employer’s ability to rely on a positive marijuana test result in making employment decisions. Specifically, subject to very narrow exceptions, New Jersey employers may not refuse to employ or otherwise discriminate against an employee who uses marijuana or based solely on a positive test result for marijuana metabolites, which effectively means that an employer can take action only if the employee is impaired by marijuana at work. On this point, employers must develop certain processes before relying on a reasonable suspicion drug test, including conducting physical evaluations and designating a “Workplace Impairment Recognition Expert” (WIRE) who must be trained to detect and identify an employee’s use or impairment from drugs and to assist in the investigation of workplace accidents. As we previously wrote, the Cannabis Regulatory Commission has not released regulations relating to the WIRE (but is expected to) and has suspended the requirement for the physical examination.
New York’s recreational marijuana law, approved on March 30, 2021, also received a lot of attention because it prohibits employers from taking any action against someone for using recreational marijuana when not working and, thus, arguably restricts the ability of an employer to consider a positive pre-employment marijuana test result (absent an exception).
Employers can still maintain drug-free workplaces, are not required to accommodate the use, possession, sale, or transfer of marijuana in the workplace, and may prohibit employees from being impaired during work hours. However, the law prohibits employers from refusing to hire, employ, or license, or to discharge from employment or otherwise discriminate against an individual because of an individual’s legal use of consumable products or legal recreational activities, which now includes marijuana in accordance with state law. The law revised New York Labor Law to prohibit employers from discharging or discriminating against an employee for the use of marijuana outside of work.
Employers can only take employment actions based on contrary federal and state legal requirements (e.g., Part 40 DOT) and federal contracts. Employers also can terminate an employee based on “specific articulable symptoms” of marijuana impairment that “interfere(s) with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards.” The New York Department of Labor recently reminded employers in its “Frequently Asked Questions” that a positive marijuana test does not prove impairment at work and, thus, stressed the importance of defensible reasonable suspicion testing policies and practices.
Most Philadelphia employers are now prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment. Currently, only New York City and Nevada have similar marijuana testing restrictions.
Exceptions apply to, among others, any position requiring a commercial driver’s license, positions requiring the supervision or care of children, medical patients, disabled or other vulnerable individuals, or safety sensitive positions, as determined by the enforcement agency and set forth in regulations pursuant to the ordinance. It also does not apply to: any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; any contract between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant; or any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.
Virginia addressed both recreational marijuana and cannabis oil. With respect to recreational marijuana, a new law allows those 21 years of age or older to possess or use recreationally. Retail sales will not begin until January 1, 2024. The law does not directly address drug-free workplaces, though it acknowledges that marijuana causes impairment and prohibits driving while under the influence of marijuana.
Virginia also amended the state’s medical marijuana law to prohibit discrimination against lawful users of medical cannabis oil (as defined in the law). Employers may not discharge, discipline, or discriminate against an employee for their lawful use of cannabis oil pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease pursuant to the state’s cannabis oil law. There are a handful of narrow exceptions.
Takeaways for Employers
Many states are considering enacting new or amending existing laws to provide employment protections to marijuana users, which could result in 2022 also being another busy year in this area. With public and legislative support for marijuana growing, employers with drug testing policies may elect to revisit their views about marijuana, especially if they find it difficult to recruit and hire talented workers or they do not employ safety-sensitive or other regulated positions.
Regardless, all employers with drug and alcohol testing programs should consider a fresh review of their policies to decide whether they will continue to test for marijuana and, if so, the circumstances under which tests will occur and the consequences for failed drug tests. Notably, some states, including Connecticut, Maine, Iowa, and Minnesota (among others) have drug testing statutes with policy requirements. Employers also should consider training their managers and supervisors to make and document reasonable suspicion determinations so they can defend any actions taken based on positive marijuana tests.
Finally, relying on state disability discrimination laws, medical marijuana users are filing lawsuits against employers for failure to accommodate and disability discrimination, which appear to be gaining traction. Thus, employers should consider having in place a clear policy and procedure for addressing accommodation requests from applicants and employees using medicinally.