Pot-Testing Limits Create Hazy Compliance Plans for Employers

The maze of evolving state marijuana laws that protect employees’ off-the-clock use and set testing restrictions could get even harder to navigate as Washington state and Minnesota lawmakers progress with their own legislation.

Washington might soon become the eighth state to enact employment protections for non-medical cannabis users, with a bill (SB 5123) that’s one legislative vote away from Gov. Jay Inslee’s (D) desk. It would restrict employers from pre-employment testing of job applicants for cannabis metabolites, substances that can stay in the body for weeks after marijuana use and don’t detect whether a person’s brain function is impaired at the time of testing. The state House and Senate have passed different versions of the bill and have just a few days left in the 2023 session to agree on the final product.

Marijuana rights advocates say there’s slow but sure momentum toward more states banning workplace discrimination over weed use or regulating testing of users. Beyond the seven states with employment protections for recreational off-duty cannabis users, another 13 restrict how employers discipline or test medical marijuana users, according to the advocacy group Marijuana Policy Project. But the laws’ specifics vary widely and are constantly changing.

In all, 21 states plus the District of Columbia have legalized marijuana for adult, recreational use, while nearly all states allow some form of medical cannabis use.

“In the absence of a drug test that can measure and establish impairment, you have just a cornucopia of laws that at times are unworkable and unrealistically hard to comply with,” said M. Tae Phillips, a lawyer at Ogletree Deakins Nash Smoak & Stewart P.C. who represents employers.

Washington’s legislation, if Inslee signs it, would take effect next Jan. 1, the same day as a similar California law enacted last year. But the California measure goes further, banning discrimination against employees for their off-the-clock marijuana use—effectively meaning a business couldn’t fire nor refuse to hire a worker for a positive drug test without also showing they were impaired on the job.

Minnesota could be headed down a similar path, if a wide-reaching marijuana legalization bill makes it through the legislature this year. The latest House version of that bill (HF 100) would limit employers’ testing of job applicants and current employees for cannabis use, potentially clarifying uncertainty that Minnesota employers have faced since the state last year legalized edible products containing THC.

No Federal Protection

As with many areas of workplace law, states have taken the lead on regulating how employers treat legal, off-hours cannabis use in the absence of federal policy. Marijuana use remains illegal under federal law.

Employees who use prescription opioid painkillers are protected from workplace discrimination by federal disability law, but that isn’t the case for marijuana, even for those who have a state-issued card documenting their medical reason for using it.

“Because cannabis is federally illegal, there is no similar protection for medical cannabis use” under federal disability law, said Karen O’Keefe, director of state policies at the Marijuana Policy Project.

On the contrary, federal transportation regulations require drug and alcohol testing for certain safety-sensitive positions in the airline, railroad, trucking, and other industries.

That’s why O’Keefe’s group offers states model legislation to not only legalize marijuana but ensure workers can’t be punished for off-hours use, as long as they aren’t coming to work high.

“That’s what you really want to know as the employer, whether the person’s performance is compromised, for whatever reason,” she said.

Impairment Testing

Although not as widely used as conventional drug tests, options for testing impairment or marijuana use within the last few hours are available and more are coming to market. O’Keefe pointed to the cognitive-function testing product AlertMeter made by the Colorado company Predictive Safety SRP Inc. Other technologies include a virtual reality headset that gauges impairment based on eye movements and marijuana breathalyzers.

But employers and their attorneys remain concerned that the technology might not be ready to help companies comply with state laws while still maintaining drug-free workplaces.

“You’re dealing with a novel concept and issue, and the absence of the ability to establish impairment is really troublesome,” Phillips said.

“Most employers, they don’t care what people do at their house, on the weekend, at the concert or the baseball game or wherever,” he said. “Impairment is kind of this dividing line. We’re OK if you’re not impaired, but we’re definitely not OK if you are impaired.”

For employers that still want to use conventional drug testing for marijuana, Phillips said the best approach differs from business to business. But he said he generally advises they consider stopping pre-employment screening for jobs that aren’t safety-sensitive but continue to test after there’s been an accident on the job or if they have reasonable suspicion that a worker is impaired.

Many of the state laws as well as Washington’s proposal include exceptions for safety-sensitive positions and jobs for which federal policy requires drug testing, but those exceptions vary from state to state.

More States to Come

States have tended to adopt employment protections for marijuana users some time after the initial legislation to legalize the drug’s possession and use. Washington and California were among the first to legalize recreational use, via ballot measures in 2012 and 2016, respectively. They’re only now enacting the restrictions on how employers test or discipline workers’ off-hours use.

Colorado, which also legalized recreational marijuana via ballot measure in 2012, doesn’t bar employers from testing or disciplining workers for use outside of work.

“We have still somewhat of a relic in our system with drug tests for pre-employment. Normally you don’t have a barrier to even apply for a job when you have used a legal substance in the past,” said Washington state Sen. Karen Keiser (D), who sponsored this year’s bill limiting drug testing of job applicants. “For those states that have legalized cannabis, it is an issue that I think will be attended to over the next few years.”

States continue to move forward with decriminalizing marijuana, leaving employers to determine whether or how they’ll restrict workers’ off-duty use.

Maryland’s legislature passed a bill (HB 556) this year to regulate adult-use cannabis sales after voters opted to legalize it. State lawmakers in neighboring Delaware also sent a marijuana legalization bill (HB 1) to Gov. John Carney (D), who vetoed a similar measure in 2022. Neither state’s legislation explicitly limits the way employers discipline or test workers’ off-duty marijuana use.

“I’m fascinated to see how some of the last conservative holdouts from a marijuana standpoint shake out,” Phillips said, pointing to the Carolinas, Georgia, and Texas as examples. “Inevitably everyone will legalize marijuana on the state level. It’s going to take a while.”