Drug-related laws are continually changing and evolving, especially with so many states adopting new laws related to the use of marijuana for both recreational and medicinal purposes. In 2018, the sales of cannabis amounted to nearly 10 billion U.S. dollars, with an expected 14.5 billion in 2020. The forecasted sales of marijuana in 2025 are trending to be at 23 billion U.S. dollars. These trends will have an impact on every professional screener’s business. Remember, it is your responsibility to stay up to date on law changes to protect you and your clients from the potential of time-consuming disputes and litigation.
The Drug Screening Process
Drug testing is an evaluation to determine if the subject has been using drugs that are in question. There are many reasons drug testing would be implemented, such as pre-employment, post-accident, safety, or random. The evaluation will be completed with a biological sample using urine, blood, saliva, or hair. Drug testing is often done when applying for an employment position, especially one that involves transportation, airline, hospitals, and caregiving or safety-related.
Typically, with workplace testing, the applicant is notified of the pre-employment screening that is part of the application process. There will be a timeframe set for the consumer to go to the laboratory to submit the sample. Most employers will use a standard 5-panel test, and some may elect to use a 10-panel test. During the process of the drug testing, there is a legal procedure requiring documentation of who handles the specimen through the entire process, also known as Chain of Custody. Workplace drug testing is essential to maintain an active and drug-free zone. This includes DOT regulations and the Drug-Free Workplace Act of 1988.
Changes to Be Aware Of in 2020
There is no federal law that prohibits an employer to drug test an employee. However, it is essential to familiarize yourself with the various state laws. Laws differ from state to state, particularly the ones that have legalized medical marijuana and recreational use. Drug use is still illegal under federal law, and there is a robust list of new drug laws per state. Drug use and workplace laws are always evolving. Currently, 33 states allow medical marijuana, and of those 33 states, 11 of them and D.C. allow recreational use. The legalization of marijuana and associated laws is an ongoing topic. Here are the most recent drug change trends:
New Jersey Law
- Effective July 2nd, 2019- The New Jersey state medical marijuana law was amended. It now prohibits disciplining or terminating solely based on being a registered medical marijuana user. It is still permissible for N.J. employers to prevent it during work hours or on company premises. Employers must give employees written notice if they test positive for marijuana. They then have three working days of receiving the letter to prove a legitimate medical reason or ask for a retest.
- Effective January 1st, 2020- Nevada law went into effect that bars employers from considering pre-employment marijuana testing. Employers can no longer take action if an employee submits a drug test that is positive unless it is for a safety-related position. This law also gives an employee the right to submit an additional drug test within the first 30 days of employment to refute the results of the initial one.
- Effective January 1st, 2020- The Cannabis Regulation and Tax Act went into effect but passed on June 4th, 2019. Illinois became the 11th state to legalize recreational use of marijuana and possession for adults over 21 years of age. Their lawmakers approved that employers can conduct reasonable drug tests, including random and may discipline. But marijuana is considered a lawful product under the Illinois Privacy Act.
- Effective January 1st, 2020- The Department of Health and Human Services approved the use of oral fluids for Federal drug testing programs.
- Effective January 6th, 2020- The Department of Transportation Clearinghouse rule started. All FMCSA (Federal Motor Carrier Safety Administration) covered employees must use the Clearinghouse to report drug and alcohol violations and are required to revise policies and list that it now gets reported to the Clearinghouse.
New York Law
- Effective May 10th, 2020- New York law will prohibit employers from conducting pre-employment marijuana tests. The law will not apply to specific jobs such as police officers, commercial drivers, caregivers, or a job that has a significant impact on health and or safety.
More and more states are passing laws that will prohibit employers from discriminating against employees because they are authorized, medical marijuana participants. Reasonable accommodation may not always be available, but employers should make a reasonable effort to find one. The determining factor on how to proceed with something like this varies upon the state laws. The current states that prohibit discrimination against medical marijuana users are Arizona, Arkansas, Connecticut, Delaware, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, and West Virginia. In Nevada and Maine, a school, employer, or landlord may not refuse or penalize a person of 21 years or older. San Francisco, California, has been protected from discrimination since 1985. The states of California, Colorado, Michigan, Montana, Ohio, and Oregon could fire an employee for testing positive even if the event was off-duty or for medical purposes.
Positive drug tests have reached an all-time high, and positive urine tests alone jumped from 4.2% to 4.4% in 2018. Post-accident positive drug tests have also increased and dropped 81% between 2014 and 2018. As marijuana use becomes more prevalent, future testing will likely involve impairment levels, much like a breathalyzer for alcohol. It is crucial to stay on top of the state to state laws and the constant changing of laws relating to drug testing