As states rapidly change their stance on the decriminalization of marijuana, business owners may wonder whether they should—or if they still can—screen their employees for marijuana use.
While there have been pushes to legalize marijuana nationwide, it remains illegal on the federal level. Likewise, drug testing is still legal federally—with two exceptions. First, in 2016, OSHA issued guidelines for workplace drug testing, imposing minor restrictions. However, it left the practice mostly up to employers. Second, the Americans with Disabilities Act (ADA) prohibits discrimination against an employee based on disability. If employees are using medical marijuana off-hours to treat a disability, employers should proceed with caution and consult with an attorney before taking disciplinary action.
These aside, most laws concerning drug testing, like drug legalization itself, are left at the state level. While some states may permit the use of marijuana for medical or recreational use, this doesn’t prohibit employers from screening for it. Generally, employers can drug test for marijuana and require pre-employment screenings, but state law may limit the actions that employers can take against applicants or employees who fail a drug test.
For example, in Pennsylvania, employers can’t deny a job or fire employees for failing a drug test for marijuana, so long as the employee who fails the test is a Pennsylvania resident, has a medical marijuana card, and only uses marijuana during non-work hours. However, nothing in the law prevents drug testing, nor does it prevent an employer from taking action against employees who use drugs at work, or recreationally without a medical marijuana card.
On the other hand, in New York, where recreational marijuana is legal, employers are allowed to drug test, but it won’t do them much good. Though employers can still discipline or fire an employee who appears impaired by marijuana while at work, they can’t use a drug test as evidence of impairment, and neither is the smell of marijuana sufficient reason to take disciplinary action.
Not every state with legal marijuana restricts what a business owner can do with a failed drug test—Florida, for instance, permits medical marijuana use, but maintains a drug-free workplace program that encourages drug testing and allows employers to discipline employees who fail drug tests.
Furthermore, some workplaces require drug testing—for instance, companies who employ drivers of commercial motor vehicles, as well as federal contractors. Even New York’s law makes way for these exceptions.
The best approach for small business owners is to research their state’s laws about drug testing, know whether a government contract mandates drug testing for their employees, follow OSHA’s guidelines, and keep in mind that medical marijuana might be treated differently under the ADA. When in doubt about how best to implement a drug testing program, employers should ask an attorney. When done properly, drug testing can keep workplaces safe and avoid unnecessary legal battles.
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