Should Employers Change Their Policies on Drug Testing as More States Legalize Recreational Marijuana?

January 17, 2020

A report from Bloomberg Law seriously analyzed this question. In recent years laws and attitudes regarding cannabis have been changing, while traditional employment drug-screening tests have remained largely the same. The concerns underlying these changes cannot solely be blamed on stereotypes and social stigma labeling marijuana users as lazy or unreliable. There are legitimate concerns over physical and mental impairment caused by THC and its impact in the workplace. 


Legislation governing cannabis has traditionally been focused on protecting employers in favor of promoting drug-free workplaces. However, as the Bloomberg Law analysis reports, some states and cities have taken a user-protection approach. For example, Illinois’ law legalizing cannabis, effective January 1, 2020, permits employers to maintain a “drug-free workplace” without regulating employee’s off-duty use of marijuana. Also effective January 1, 2020, a Nevada law will prohibit employers from denying employment due to an individual testing positive for cannabis. Going even further, a New York City law, effective in May 2020, prohibits pre-employment cannabis testing overall.


In Massachusetts, a hearing was held in early November 2019, on legislation to amend the state’s anti-discrimination and fair employment practices law M.G.L. c.151B, to prevent employers from requiring “employee[s] or prospective employee[s] to submit to testing for the presence of marijuana in his or her system as a condition of employment.” The proposed legislation, Bill H.3751, does carve out certain exceptions to the prohibition including for purposes of enforcing regulations of the federal Department of Transportation, federal government employees, federal statutes requiring testing of employees/prospective employees for purposes of safety or security, substance abuse prevention programs, collective bargaining agreements, and rules requiring the testing of prospective state, county, and municipal officials. 


Employers should keep in mind that on a national level the use of cannabis is still illegal, despite state laws authorizing recreational use. However, the culture shift around recreational cannabis use and increasing levels of legalization on the state-level may soon change that. The takeaway from reports, like the one published by Bloomberg, is that there is no one size fits all policy that companies can adopt to reflect the changes in cannabis legalization and normalization. Each policy must be tailored to meet an individual employer’s needs and goals. The most effective policies are those which clearly define the company’s position on drug use and screening practices, educates employees on potential issues that may arise from drug use in the workplace, and those that aim to improve workplace safety.


ANALYSIS: Cannabis Laws Have Employers Rethinking Drug Testing


MA Legislation: An Act to eliminate workplace drug testing for marijuana

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