Quest Diagnostics Employer Solutions appreciates the challenges employers face, especially today as demand for workers continues to outstrip supply. Many employers have chosen to compromise the safety of their workplaces for quicker hiring solutions by not testing for marijuana or eliminating drug testing altogether. And for those who continue to screen their candidates and employees, many questions and uncertainties remain.
To add clarity and perspective to this important issue, Quest Diagnostics is pleased to present the following interview with Faye Caldwell, Esq.,3 a leading legal expert on the subject of drug testing and cannabis laws.
In states that have legalized marijuana, do employers still have the right to prohibit employees from using marijuana on the job or being under the influence of marijuana while working? And if so, can an employer build those prohibitions into a policy regardless of their position on drug testing?
Faye Caldwell: Absolutely. And in fact, if you can’t take action against somebody following a positive drug test because that state provides legal protections, you can build a policy around the idea of informing employees that, yes we know that you have a right to legal off-duty use, but remember, you can’t use marijuana on the job and you can be fired for doing so. Employers should let employees know that they can’t come to work impaired. Many employers might not have a good concept of what rights they do have. Even if it may be difficult for the employer, particularly for impairment, to take action on a positive drug test, it should be an education point in a policy to help employees understand that they have some obligations as well.
The idea is that employers do not have to let anyone use cannabis on the job. That is a generality, but pretty well true. And they don’t have to let anyone work impaired. That is pretty much universal. That said, I always invite everyone to consult their own lawyer for their own state for their own job duties.
So, is it legal to test for marijuana?
Faye Caldwell: It is a complex question, but also a very narrow question. There is a difference between testing for cannabis and being able to use the results of testing for cannabis. Let’s break it down.
Can a test for cannabis actually be ordered? It depends on the type of testing being done. If it is federally mandated testing, DOT [Department of Transportation] or a federal agency, what I call federally regulated, you are not only able to test for cannabis, but you are also required to test for cannabis and take action based on a positive result.
For non-federally regulated testing it depends on where you are. Actually, it’s quite limited for where you cannot test for cannabis. Specifically at this moment, generally people who are employed in the state of New York or are going to be employed in the state of New York, absent from very minor exceptions, cannot be tested for cannabis. This is according to the state’s Department of Labor guidance that came out October 2021.
Additionally, there are some municipalities throughout the country that have placed restrictions on testing for cannabis on pre-employment screens only. Philadelphia has done that. So, we may see that generally limited to pre-employment testing, not random or post-accident.
Do you think some employers may be confused about whether they can test for cannabis because in their state there are restrictions on what they can do with the result?
Faye Caldwell: I think that some employers are confused about that. When I talk with employers, that’s generally the distinction. But what employers can do with a positive test result for marijuana depends on location and whether we’re talking about recreational cannabis or medical cannabis. We have to put those in two different buckets. Generally, in a number of states with legal medical marijuana, the test result alone cannot be used for what is called “adverse employment action.”
So, the issue comes down to looking at the state where the person is going to be employed, not the state where the employer is located. I will tell you that a lot of clients get confused about that. If the company is headquartered in Washington State, for example, it does not mean that all their employees in other states get legal use of cannabis. It depends on where the employee works. Then you have to look at the state law and see what restrictions it places on the workplace. In some places the answer is basically there is nothing you can do without [the employee being] impaired. New Jersey has just issued guidance on their recreational cannabis law and it’s something quite different than anywhere else. But it does severely restrict the ability of employers to take action on a positive cannabis test result. As such, for some employers it’s not just a question of where you can test, it’s often a question of is it worth testing at all.
What is a safety-sensitive carve-out in a marijuana law?
Faye Caldwell: This is where employees in certain safety-sensitive job positions may be subject to adverse employment action if they test positive for cannabis. We must point out that safety-sensitive does not mean the same thing across the nation. From state to state the definition of “safety-sensitive” can be very, very different. In some states, like my home state of Texas, you can pretty much do anything you want with a positive test result. Other states, you may get a question from an HR person of why you’re testing for cannabis at all.
Can employers justify a drug test based on some standard of reasonable suspicion they’ve established for their company, or do they need some other evidence to go along with it?
Faye Caldwell: Well as with many things, I am going to tell you the answer is a definite maybe. Because again it comes back to the location. Let’s take a couple of examples in a marijuana-friendly state. In Nevada, which is a marijuana-friendly state with what’s called an “off-duty” law that offers certain protections to people who use lawful products on their own time, the state Supreme Court quite surprisingly said that you can fire an employee who tests positive for cannabis. This means for current employees there is no protection. The state Supreme Court said because marijuana is federally illegal, an employer can conduct a drug test and take action based on a positive result. So that is kind of one extreme where a lot of people were a bit surprised by that ruling.
Let’s go to New York where you can test if there are observable, articulable symptoms of impairment or being under the influence. So, what is that? We all are used to the DOT standard of reasonable suspicion. Will that work? Well, it’s a good start to have supervisors document behavior that may be related to impairment. But employers must look at the state laws because the standard will vary. In some states the smell of cannabis might qualify as a sign of impairment, whereas in other states it would not.
At a minimum, I think a prudent employer would provide supervisor training on what impairment looks like in the workplace. Importantly, I will emphasize that the point is reasonable suspicion of drug use, and at the moment we see it, what appears to be impairment, but we don’t know what caused it. It could be drug use, it could be an adverse reaction to a medication, it could be a father with a newborn who hasn’t had any sleep in 72 hours. The goal should be to get that person off the job. Make a safe workplace. Get them the help they need. Do some investigation—with drug testing being one tool.
Does it make a difference what drug testing method an employer uses as it relates to marijuana?
Faye Caldwell: Yes. Let’s use recent legislation in California as an example in answering that question. California correctly recognizes that most workplace drug testing for marijuana focuses on identifying a metabolite of a drug. That would be urine and hair. Now, these testing methods are fabulous, and there are scientific reasons why that’s so. But they correctly identify marijuana metabolites, not the parent drug. But the presence of a metabolite does not mean the drug is active in the system. It is evidence that it has passed through a person’s body and resides there which would indicate previous usage.
Hair testing, for example, identifies a pattern of repetitive use. If you use an inch and a half of head hair, you’re looking at a 90-day look-back. Which has always been useful to employers at identifying lifestyle marijuana usage. Now is that relevant in light of some of the cannabis laws? Same thing with urine. Both methods are testing for metabolites. What California has said is, starting in January 2024, an employer can test for marijuana, but they cannot use a method that looks for metabolites. So, an employer would not be allowed to take action, absent some safety-sensitive carve-outs that are in the new regulation. This may effectively limit the utility of hair or urine testing in that state.
Your Privacy Choices