As we see the evolution of local and state laws on medicinal and recreational marijuana, we need to ensure our drug and alcohol testing policies are up-to-date and legal.  A nationwide policy on drug and alcohol testing will not suffice, as states continue to change legislation.  We also need to ensure the Americans with Disability Act language is included in the policy and we enforce consistently.

Below are six definitions to consider in the drug and alcohol testing policy:

1. Employee Assistance Program: If your organization offers employee assistance, we should carve out language regarding the assistance that is provided to the workforce, with location, contact person and phone number.  The EAP information should be communicated regularly and through multiple channels of communication.
2. Preemployment Testing: This is common language to include in a drug testing policy or offer letter. “Applicants being considered for hire must pass a drug test before beginning work or receiving an offer of employment. Refusal to submit to testing will result in disqualification of further employment consideration.”[i]
3. Reasonable Suspicion Testing: Often included in policies throughout many of our workplaces. “Employees are subject to testing based on (but not limited to) observations by at least two members of management of apparent workplace use, possession or impairment. HR, the plant manager or the director of operations should be consulted before sending an employee for testing. Management must use the Reasonable Suspicion Observation Checklist to document specific observations and behaviors that create a reasonable suspicion that an employee is under the influence of illegal drugs or alcohol. Examples include:
4. Odors (smell of alcohol, body odor or urine).
5. Movements (unsteady, fidgety, dizzy).
6. Eyes (dilated, constricted or watery eyes, or involuntary eye movements).
7. Face (flushed, sweating, confused or blank look).
8. Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts).
9. Emotions (argumentative, agitated, irritable, drowsy).
10. Actions (yawning, twitching).
11. Inactions (sleeping, unconscious, no reaction to questions).”[ii]

This is not an all-inclusive list and should be tailored to the needs of your organization.

• Post-Accident Testing: If your employees are operating equipment or driving workplace vehicles, this is language that should be included in your organization’s policy.  In some organizations post-accident testing is common after any accident in the workplace, it does not have to be an industrial organization.  Determine with your insurance agency and workers compensation company which post-accident testing should be in the policy.
• Random Drug Testing: In the past we have used external organizations to draw a percentage of names monthly for drug, alcohol and drug and alcohol testing.  You can also program Excel spreadsheets to randomly choose people for random testing, based on employee numbers.  This should be done consistently monthly, semimonthly, semiannually or annually.  The policy should be communicated to employees.
• Return to Work Testing: Remember the ADA in this situation and state regulations prior to implementing return to work testing.  I have used this process in past organizations when someone has admitted to testing positive prior to a random drug test.  We utilized a 12-month random drug testing last chance agreement.

Every organization will have differing requirements for drug and alcohol testing.  If your organization is DOT regulated, ensure you are following state and federal DOT requirements. The rules are complex and have changed recently.  Ensure your organization defines what happens if an employee does test positive for drugs, alcohol or both.  Consider adding language in regarding selling or purchasing drugs on company property.  Review the policy annually, communicate any changes to the workforce, publish the policy and obtain signatures from all employees.  If an employee is on a last chance agreement, review the policy again and obtain a signature.  In some circumstances preemployment drug and alcohol testing can lower workers compensation rates, I have seen this with manufacturing companies.  Confirm with your comp provider to see if this is an option. 

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[i] SHRM Draft Policy

[ii] SHRM Draft Policy

Key Aspects of Workplace Drug and Alcohol Testing

• Purpose: These tests are part of broader drug-free workplace programs aimed at preventing accidents, reducing absenteeism, and maintaining overall workplace safety and productivity. Testing can deter substance misuse and help identify employees who may need assistance or disciplinary action 
• Types of Tests: Various biological specimens can be tested, including urine, blood, saliva (oral fluid), hair, and sweat. Urine testing is the most common for drugs, while breath-alcohol tests are typical for alcohol detection. Each method varies in invasiveness, detection window, and substances detected 
• When Testing Occurs: Testing may be conducted at different times, such as pre-employment screening, random testing, post-accident, reasonable suspicion, post-treatment, or as part of annual physical. The timing and frequency depend on company policy, industry regulations, and legal requirements 
• Legal and Regulatory Framework: Workplace drug and alcohol testing programs must comply with applicable local, state, and federal laws. For example, the U.S. Department of Transportation (DOT) has specific regulations (49 CFR Part 40) governing testing in federally regulated transportation industries. Additionally, laws like the Americans with Disabilities Act (ADA) impose restrictions on when and how alcohol testing can be conducted to protect employee rights  
• Test Result Handling: Tests are typically conducted by certified laboratories, and results are reviewed by Medical Review Officers (MROs), who interpret findings considering medical history and other relevant information. Positive results may lead to referrals for treatment, rehabilitation, or disciplinary measures 

Marijuana in the Workplace Evolving Legislation

“Over the past decade we have seen significant changes throughout the country at the local and state level related to medicinal and recreational marijuana, with the majority of states legalizing some form of THC or cannabis. Marijuana is still illegal at the federal level, which governs the Department of Transportation rules and regulations for many positions across the country. With the president recently pardoning federal marijuana-related misdemeanors, HR professionals need to ensure we embrace not only the changes laws and regulations, but the changing attitudes towards recreational and medicinal marijuana use.

New York State Recreational Marijuana Q&A PDF

• Medicinal Use & ADA:    Medical marijuana is legalized in the majority of the states throughout the country. Medical providers can and do prescribe marijuana for medicinal use. We should fully understand reasonable accommodation, essential functions, and additional considerations under the American with Disabilities Act, along with other local and state laws and regulations.

• Drug Testing: Certain states and cities have now banned preemployment drug testing for THC for many positions in the state or locale. Ensure you have a clear understanding of any evolving laws and regulations. Also consider DOT regulations, at times you might have separate drug testing policies for DOT and non-DOT employees in the same organizations. Expectations and policies should be communicated.

• Criminal Background Checks:  Laws and regulations continue to evolve on criminal background checks related to prior charges for marijuana related crimes. This includes second-class legislation. There are a variety of laws and regulations across the country defining the dos and don’ts of criminal background checks. Research and outsourcing will ensure proactive approaches to criminal background checking.   

• Policies & Procedures: With evolving legislation, make it a priority to update any policies and procedures in relation to drug-free workplaces, preemployment testing, reasonable suspicion, post-accident testing, etc. Regardless of the laws and regulations, there should be  zero-tolerance policy in place of any employee being under the influence or any drug or alcohol in the workplace. Implementing an Employee Assistance Program (EAP) is recommended for organizations that are large and small. Train supervisors on enforcing the policy and procedures and communicate any changes throughout the organization.” (Burr SHRM Article)

The Americans with Disabilities Act until recently, ruled against reasonable accommodation in relation to medicinal marijuana use.  Employer-Friendly decisions include Washburn v. Columbia Forest Products, Inc., Roe v. Teletch Customer Care Mgmt., Johnson vs. Columbia Falls Aluminum Co., and Ross v. RagingWire Telecommunications, Inc.  Three out of the four rulings for employers happened in pro-marijuana states: California, Oregon and Washington.  However, along comes Barbuto vs. Advantage Sales and Marketing, LLC; “the Massachusetts high court addressed whether an employer must accommodate medical cannabis use, since state law permits medical marijuana use and prohibits disability discrimination…The court held that an exception to the employer’s drug policy to permit offsite marijuana use may be a reasonable accommodation where the employee’s physician determines that marijuana is the most effective treatment for the employee’s disability and that any alternative medication permitted by the employer’s drug policy would be less effective.” https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/must-employers-accommodate-medical-marijuana.aspx

AI Answer State Laws: A Patchwork of Regulations

The legal status of marijuana varies significantly from state to state, creating a complex and often confusing landscape. States generally fall into one of four categories:

1. Recreational Use Legal

In states with recreational marijuana laws, adults (typically 21 and older) can legally purchase, possess, and use marijuana for non-medical purposes. These states typically have a regulated market with licensed dispensaries, cultivation facilities, and testing labs. Sales are subject to state and local taxes. Specific regulations vary but often include limits on the amount of marijuana that can be purchased or possessed at one time, as well as restrictions on where marijuana can be consumed (e.g., prohibiting public consumption).

Examples of states with recreational marijuana laws include:

• Colorado: Was one of the first states to legalize recreational marijuana.
• Washington: Also legalized recreational marijuana early on.
• Oregon: Known for its relatively liberal marijuana laws.
• California: Has a large and established recreational market.
• Alaska: Allows for limited personal cultivation.
• Nevada: Benefits from tourism driving marijuana sales.
• Maine: Has a regulated recreational market.
• Massachusetts: Another East Coast state with recreational legalization.
• Michigan: A Midwestern state with recreational marijuana.
• Vermont: Allows personal cultivation and possession.
• Illinois: The first state to legalize recreational marijuana through legislation.
• Arizona: Recently legalized recreational marijuana.
• Montana: Has a developing recreational market.
• New Jersey: Another recent addition to the recreational legalization list.
• New Mexico: Has legalized recreational marijuana.
• New York: Has legalized recreational marijuana.
• Connecticut: Has legalized recreational marijuana.
• Rhode Island: Has legalized recreational marijuana.
• Maryland: Has legalized recreational marijuana.
• Delaware: Has legalized recreational marijuana.
• Missouri: Has legalized recreational marijuana.
• Ohio: Has legalized recreational marijuana.

2. Legal Medical Use

States with medical marijuana laws allow patients with qualifying medical conditions to access marijuana with a doctor’s recommendation. These states typically have a registry program where patients can obtain a medical marijuana card, allowing them to purchase marijuana from licensed dispensaries or, in some cases, cultivate their own. Qualifying conditions vary by state but often include chronic pain, cancer, epilepsy, and multiple sclerosis.

Many states have medical marijuana programs, including:

• Arkansas
• Florida
• Louisiana
• Minnesota
• New Hampshire
• North Dakota
• Oklahoma
• Pennsylvania
• South Dakota
• Utah
• West Virginia

3. Decriminalization

Decriminalization means that possession of small amounts of marijuana is treated as a minor offense, similar to a traffic ticket, rather than a criminal offense. Penalties typically involve a small fine, and there is no risk of jail time. Decriminalization does not legalize the sale or cultivation of marijuana.

Some states that have decriminalized marijuana include:

• Nebraska
• North Carolina
• Ohio

4. Prohibition

In states with prohibition, marijuana remains illegal for both recreational and medical purposes. Possession, use, sale, and cultivation of marijuana are all subject to criminal penalties, which can range from fines to imprisonment.

Currently, only a few states maintain complete prohibition:

• Idaho
• Kansas
• Wyoming

“Schedule I: Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3 methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote”  “Despite marijuana’s Schedule I status, former President Barack Obama’s administration issued a memo in 2013 stating that federal prosecutors wouldn’t target adults who were growing or using marijuana in accordance with state laws. Instead, the federal government focused its efforts on preventing marijuana sales to minors and stopping drug cartels.  Although President Donald Trump’s administration rescinded the Obama-era memo, there hasn’t been a ramp up in enforcement, and states continue to approve marijuana use.” https://www.dea.gov/drug-scheduling

Drug Free Workplace Act

The most important piece of legislation regulating federal contractors and grantees is the Drug-free Workplace Act of 1988 (PDF | 204 KB). Under the act, a drug-free workplace policy is required for:

• An organization that receives a federal contract of $100,000 or more
• Any organization receiving a federal grant of any size

At a minimum, such organizations must:

• Prepare and distribute a formal drug-free workplace policy statement. This statement should clearly prohibit the manufacture, use, and distribution of controlled substances in the workplace and spell out the specific consequences of violating this policy.
• Establish a drug-free awareness program. This program should inform employees of the dangers of workplace substance use; review the requirements of the organization’s drug-free workplace policy; and offer information about any counseling, rehabilitation, or employee assistance programs (EAPs) that may be available.
• Ensure that all employees working on the federal contract understand their personal reporting obligations. Under the terms of the Drug-Free Workplace Act, an employee must notify the employer within five calendar days if he or she is convicted of a criminal drug violation.
• Notify the federal contracting agency of any covered violation. Under the terms of the Drug-free Workplace Act, the employer has 10 days to report that a covered employee has been convicted of criminal drug violation.
• Take direct action against an employee convicted of a workplace drug violation. This action may involve imposing a penalty or requiring the offender to participate in an appropriate rehabilitation or counseling program.
• Maintain an ongoing good faith effort to meet all the requirements of the Drug-free Workplace Act throughout the life of the contract. Covered organizations must demonstrate their intentions and actions toward maintaining a drug-free workplace. Their failure to comply with the terms of the Drug-Free Workplace Act may result in a variety of penalties, including suspension or termination of their grants/contracts and being prohibited from applying for future government funding.

OSH Act

Duty to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm”

Substance abuse is such a hazard.

DOT “Medical Marijuana” Notice

• DOT “Medical Marijuana” Notice (PDF)

DOT Office of Drug and Alcohol Policy and Compliance Notice

Recently, the Department of Justice (DOJ) issued guidelines for Federal prosecutors in states that have enacted laws authorizing the use of “medical marijuana.” http://www.justice.gov/opa/documents/medical-marijuana.pdf

We have had several inquiries about whether the DOJ advice to Federal prosecutors regarding pursuing criminal cases will have an impact upon the Department of Transportation’s longstanding regulation about the use of marijuana by safety‐sensitive transportation employees – pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, among others.

We want to make it perfectly clear that the DOJ guidelines will have no bearing on the Department of Transportation’s regulated drug testing program. We will not change our regulated drug testing program based upon these guidelines to Federal prosecutors.

The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

That section states:

§ 40.151 What are MROs prohibited from doing as part of the verification process?
As an MRO, you are prohibited from doing the following as part of the verification process:
(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

We want to assure the traveling public that our transportation system is the safest it can possibly be.

Jim L. Swart
Director
Office of the Secretary of Transportation
Office of Drug and Alcohol
Policy and Compliance
Department of Transportation
October 22, 2009

https://www.transportation.gov/odapc/medical-marijuana-notice

“Implications of Legalization of Recreational Marijuana

Despite three states—Arkansas, North Dakota and South Dakota—rejecting in 2022 the legalization of adult recreational marijuana use, three other states—Maryland, Missouri and Rhode Island—legalized such use.

“I think the legalization of marijuana is inevitable nationwide; it’s just a matter of how and when,” said Dillon McGuire, an attorney with Pashman Stein Walder Hayden in Holmdel, N.J.

Recreational marijuana is now legal in 21 states plus the District of Columbia.

Therapeutic Psychedelics

In the U.S., the use of certain psychedelics in a facilitated, supervised setting is lawful in Colorado and Oregon, noted Lauren Carboni, an attorney with Foley & Lardner in Denver, and John Litchfield, an attorney with Foley & Lardner in Chicago.

In November 2020, Oregon became the first state to regulate therapeutic psilocybin sessions for adults 21 and older in licensed, clinical settings.

Psilocybin is the psychoactive compound found in what is referred to as magic mushrooms, explained Christine Lamb, an attorney with Fortis Law Partners in Denver.

The state begins accepting applications for licensure of facilities to administer its regulated psilocybin services program on Jan. 2, 2023.

In November 2022, Colorado voters approved a similar measure. By Sept. 30, 2024, the Colorado Department of Regulatory Agencies must adopt implementation rules.” (SHRM)

Additional Resources:

https://www.shrm.org/resourcesandtools/pages/marijuana.aspx

State Laws

Other Considerations:

• Policy & Procedure Revisions
• Review State & Local Legislation
• Drug Free Workplace Act Considerations
• Employee Assistance Program
• DBL & FMLA
• ADA
• Reasonable Suspicion Training for Supervisors
• Communicating with the Workforce
• DOT Regulations
• Policy Signature