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ANALYSIS: Cannabis Laws Have Employers Rethinking Drug Testing

Nov. 4, 2019, 11:06 AM

More states are welcoming citizens who want to light up, but employers within those states aren’t always on board with employee cannabis use. Employers are clinging to drug screening policies that keep cannabis users out of the workplace, but that’s poised to change in 2020, as evolving attitudes and innovative state laws push employers to reconsider their current use-based testing practices in favor of more impairment-focused cannabis policies.

One major caveat for cannabis users eager for more acceptance at work: Cannabis screening won’t be eliminated entirely. Cannabis is still illegal at the national level, and certain employers are required to continue drug testing by either state or federal law.

Changing Attitudes on Testing

Most cannabis screening tests can determine if someone has used cannabis recently, but not whether that person is currently impaired. Cannabis testing generally looks for the presence of delta-9-tetrahydrocannabinol, also known as THC, in the body. THC can linger in the body for weeks after a person uses cannabis.

Changing laws and attitudes cast this traditional cannabis testing in a new light. Employers used to feel comfortable relying on THC tests because cannabis use was illegal or because they worried that cannabis users would be lazy or unreliable. With legalization growing and the stigma softening, use-focused testing becomes less useful. Employers need to be prepared to focus on testing for actual impairment in the workplace.

States and Cities Move to Protect Users

State and local cannabis laws have traditionally focused on protecting employers and their right to maintain a drug-free workplace, but that’s also been changing over the past few years. First, a few states enacted laws to protect medicinal cannabis users, and now states are starting to enact laws to protect recreational cannabis users.

One notable example is Illinois’ sweeping cannabis legalization law. The law, which becomes effective Jan. 1, permits employers to maintain a “drug-free workplace” but redefines that term to cover impairment at work, not off-duty use.

Although that law doesn’t give cannabis users any recourse for discrimination, a separate Illinois law, the Right to Privacy in the Workplace Act, does. It prohibits employers from discriminating against employees for their off-duty “use of lawful products.” The law defines “lawful products” as products that are legal under state law – which, in 2020, will include cannabis.

Nevada and New York City have tackled the issue of drug testing more directly. Nevada’s law, also effective Jan. 1, 2020, prohibits employers from denying employment because individuals test positive for cannabis. New York City’s law, which becomes effective in May 2020, prohibits pre-employment cannabis testing altogether.

A bill in Massachusetts would take things even further, making cannabis use a protected class under the state’s fair employment practices law.
These state laws have influence beyond their borders. They drive up compliance costs and risks for multistate employers, pushing employers to adopt policies that must be workable in every state. Increasingly, the best solution for most employers will be to eliminate cannabis testing almost entirely.

The Future of Cannabis Testing

2020 will see employers refocus their priorities away from mandatory or random testing and towards finding ways to identify workers who are impaired during work hours. This won’t be an easy process. Employers will have to build out policies to establish new cannabis screening practices and train workers to identify signs of current impairment. Workplace policies towards testing for alcohol impairment in the workplace could prove to guide the way for employers.

Read about other trends our analysts are following as part of our Bloomberg Law 2020 series.