Employer Policies Concerning Outside the Workplace Marijuana Use

Employers located in states that have passed laws restricting marijuana testing, specifically THC Delta-9, have needed to evaluate how they test for THC and which employees they test for THC. The key points to decipher are- Is my state making a law on what testing reasons can be covered or are they more concerned with the method in which THC is being tested. Also, how should my company test differently for positions according to their safety sensitive nature. This will not be a comprehensive guide on every state passing legislation but how to maintain your policy in the few different scenarios. Also, this is not discussing the Federal testing that includes DOT agencies as well as Coast Guard.

Some states such as New York and New Jersey have passed wide encompassing laws that leave little room for companies to distinguish their safety sensitive employees or to use methods of testing that specifically focus on recent usage. They simply want companies to only test for marijuana in reasons of reasonable suspicion. This type of situation could even be difficult for companies to include THC testing for employees in safety sensitive position that could affect safety. Counsel to companies in this situation would be to focus on reasonable suspicion supervisor training so that supervisors and managers are comfortable dealing with employees that could be impaired. Workplaces that have extremely sensitive operations occurring could certainly argue that impairment cannot be tolerated and distinguish safety sensitive positions that THC would be included.

On the west coast a state's law could exclude THC testing just for one testing reason such as pre employment. Another western state defines no THC testing unless it detects the psychoactive cannabis. States can use this definition of psychoactive cannabis to deter employers from traditional urine testing method which can go back a number of days in the persons window of usage. Some states will also try to identify industries or occupations that they allow to be called safety sensitive. Legislation can even attempt to define what level of harm must result due to the impairment to label a safety sensitive position.  A state's definition of safety sensitive may not be as prudent as a thorough policy description. That will be key for companies to examine positions which impairment can cause harm and injury to coworkers and the public.

Concerning states that identify testing reasons that cannot include THC it may be possible to actually include THC if the testing method is compatible with the law. Maybe oral fluid is a possible option or other methods other than urine.  Oral fluid detects a much more recent usage window compared to urine and laboratories across the nation have supported this data. Also, markets are soon to introduce in 2024 the new breathalyzer device that detects recent THC usage and as this product becomes more available this testing can be included in your policy.

In summary, a company policy will vary depending on the state they operate in. It is important not to assume or believe that drug testing described in a legislation applies to all types of testing methods. Drug testing services encompass a wide range of devices and processes that can be very complex but can be crucial in adjusting to state laws. Also, it is important for employers to update their policy wording in terms of what substances are prohibited by the company. This is obviously only applicable for NonDOT (NonFederal) employees. One thing to take in consideration is if employer's policy identifies illegal substances as those identified on the Federal Government list. If the employer's policy does not allow marijuana (THC) then this wording would still hold true but policy wording should be updated further if they are not testing for THC or allowing THC use outside the workplace. In those policies allowing recreational marijuana use outside the workplace wording referring to the Federal Government list of illegal substances would not be appropriate. Lastly, the company needs to make sure their company is utilizing testing methods that are corresponding with their drug policy.

Minert & Associates can provide specific suggestions and counsel to help your drug policy be as robust as possible.

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