The fast-evolving legal landscape of employment drug testing laws, primarily with state-specific marijuana laws, has brought increasing challenges for employers. Currently, 33 states and Washington D.C. permit the use of medical marijuana; 10 states and Washington D.C. have authorized the personal ‘adult’ use of marijuana (soon to be 11 states with Illinois adopting new rules beginning in 2020). In the early years of medical marijuana legalization, most state-specific marijuana laws had no significant impact on or failed even to mention employment drug testing programs. Times are changing, and an increasing number of state’s medical and legal marijuana use laws contain language that significantly impacts the actions that employers can take with screening and discipline.
There are a few noteworthy legal changes that impact employer screening programs. Starting in May of 2020, employers in New York City will be prohibited from screening for marijuana in pre-employment drug tests. There is a limited list of exceptions to this new law for those workers considered to be “safety-sensitive” – generally for public safety employees & construction workers. Otherwise, this new law applies to all employers within the city limits.
In Nevada, starting January 1, 2020, employers will be prohibited from testing for marijuana pre-hire, the first state to enact such a rule. A crucial detail to note, Nevada’s new law does not apply if the prospective employee is applying for a position that “in the determination of the employer could adversely affect the safety of others.”
In Oklahoma, the “Unity Bill” was enacted in March 2019 and added some new limitations for employers. The revisions to the law prohibit employers from discriminating against an employee or applicant solely on the basis that the person’s status as a “medical marijuana licensee.” Additionally, no employer may take employment action based on a medical marijuana licensee’s positive drug test for marijuana metabolites unless:
The medical marijuana laws in Hawaii, Maryland, Missouri, New Hampshire, and West Virginia also contain clear or infer to “carve-outs” for safety-sensitive employees.
The details contained within written job descriptions are and will continue to grow in importance. When is the last time you reviewed your job descriptions for all functions within your company? Are you prepared to defend your stance on those details if it were ever to be challenged? Employers must have clear job descriptions detailing the essential functions of each job, which are the fundamental duties of a given task. As an example, an essential job function of a forklift operator is to safely and adequately operate forklift equipment, which requires specialized skills, training, and certifications.
Employers reserve the right to determine the essential functions, education, training, qualifications, and performance standards of the job roles within their company, so long as those standards and requirements are consistently applied and are not explicitly established to discriminate against an individual with disabilities. Employers should also consider carefully crafted interview questions to aid in the selection of qualified individuals for essential job functions.
As you can see, job descriptions are becoming more critical than ever before. It’s essential to review the details contained within the language of each state’s laws and to make sure that your job descriptions are comprehensive and are routinely reviewed so that you are prepared to defend your stance if you were ever to be challenged on the classification of a “safety-sensitive” employee.
Taking these actions now will ensure that you have taken appropriate steps to minimize your risk, stay compliant, and maintain a safe and drug-free work environment.
 AK, AR, AZ, CA, CO, CT, DE, FL, HI, IL, LA, MA, MD, ME, MI, MN, MO, MT, ND, NH, NJ, NM, NV, NY, OH, OK, OR, PA, RI, UT, VT, WA & WV. Also, Guam, NMI, Puerto Rico & USVI.
 AK, CA, CO, MA, ME, MI, NV, OR, VT & WA . Also, Guam & NMI.
 AB 132, Sec. 2, (2)(d).
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