Drug Tests

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Published in Law360 on July 19, 2023. © Copyright 2023, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.

While many individuals are excited about the proliferation of state laws providing for medical and recreational use of marijuana across the country, inconsistencies in these state laws have made it difficult for employers to put in place consistent policies and practices on testing for marijuana as a condition of employment, upon reasonable suspicion, and post-accident. Employers are being forced to revisit their drug-testing policies not just because of changes to their state’s laws regarding medical and recreational use of marijuana, but also because it is becoming increasingly difficult to find employees who have not used, or do not use, marijuana. If employers want to continue testing for marijuana in states where use is legal, policies must be drafted carefully to account for the continued evolution of the law in this area.

How do you determine when an employee is impaired at work? How do you detect drug use in a remote work environment? When can you ask an employee to take a drug test? Partners Tracey Diamond and Evan Gibbs sat down with Squarespace Senior Counsel Larissa Boz to talk about the popular Max series Industry and managing employee performance and drug use.

Q: I read that some major companies no longer drug test applicants for marijuana. What should our company consider as we conduct a review of our workplace drug testing policy for 2022?

A: It is true that a growing number of companies appear to be eliminating workplace drug testing. There are two major reasons: expanding marijuana legalization and the pandemic-era labor shortage.

* Sean M. Craig is a 2021 summer associate at Troutman Pepper. He is not admitted to practice law.

Q: Does Philadelphia have any laws regulating drug testing for marijuana? 

A: Philadelphia recently passed an ordinance that prohibits employers from requiring “a prospective employee to submit to testing for the presence of marijuana in such prospective employee’s system as a condition of employment.” The ordinance will take effect on January 1, 2022, and applies to any person doing business in the city who employs one or more employees.

The ordinance does not prohibit pre-employment testing of certain types of employees, including police and other law enforcement positions, any position requiring a commercial driver’s license, and any position that requires the supervision or care of children, medical patients, disabled people, and other vulnerable persons. Also, there are exceptions from the pre-employment testing prohibition, for instance, where drug testing would otherwise be required by applicable law, including a federal or state statute or regulation; where the federal government requires testing as a condition of the receipt of a contract or grant; or where testing is pursuant to a valid collective bargaining agreement.

Q: Are there any new cases involving Pennsylvania’s Medical Marijuana Act in the context of employment?

A: Given that state-sanctioned use of medical marijuana is relatively new, there are few cases interpreting Pennsylvania’s medical marijuana law with regard to employment. This is why a recently filed Pennsylvania lawsuit could have…

Q.  Now that medical marijuana is legal in New Jersey, does the Law Against Discrimination require employers to provide an accommodation for medical marijuana use?

A.  While New Jersey employers are not required to accommodate the use of medical marijuana in the workplace, they may be required to accommodate an employee’s off-duty use of medical marijuana outside of the workplace, according to a recent decision. On March 27, 2019, the New Jersey Appellate Division reversed a lower court’s ruling that state law does not provide employment protections for medical marijuana users. Although the court affirmed that employers are not required to accommodate an employee’s use of medical marijuana in the workplace, the court found that failure to accommodate off-duty use of medical marijuana outside the workplace could give rise to liability under the New Jersey Law Against Discrimination (NJLAD).

Q: I heard New York City is banning employers from doing pre-employment drug testing for marijuana. What do I need to know?

A: Effective May 10, 2020, New York City employers are prohibited from testing prospective employees for marijuana or tetrahydrocannabinols (the active ingredient in marijuana) as a condition of employment.  The law applies to all prospective employees in New York City, regardless of whether the employer is located in New York City.

Q: Can my company refuse to hire or terminate an individual because the individual is a medical marijuana user?

A: Not necessarily.  While we have not seen any laws to date explicitly requiring employers to accommodate employees’ use of marijuana for medicinal purposes while at work, in some states at least, employers may not terminate employees for their use of medical marijuana outside of the workplace, even if it means that the employee tests positive in a drug screen.

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.

Q: My company requires employees to submit to random drug tests.  Will our  drug testing policies “go up in smoke” as laws grow more lenient towards marijuana use? 

A: That is a valid question considering that Pennsylvania became the 24th state to legalize the use of marijuana for medical purposes.  In addition, several jurisdictions have legalized marijuana for recreational use.  Importantly, however, marijuana use, distribution, and possession remains prohibited under federal law.

So what does this mean for employers?