The rapid spread of marijuana legalization in states has slowed in recent years, but recently passed laws in cannabis-friendly jurisdictions include expanded employment protections for medical and recreational cannabis users. The scope of the laws vary, but they generally make it more difficult for employers to discipline employees based on positive drug tests for THC, with several states requiring employers to show objective evidence of present impairment to support work-related penalties for marijuana use.
These cannabis laws have created significant issues for employers trying to reconcile compliance with both state and federal occupational safety and health laws. The Occupational Safety and Health Administration’s (OSHA’s) general duty clause and equivalent laws in state plans still require employers to maintain a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm. Most would agree that a pallet jack operator who is high from THC could interfere with a safe workplace. Yet, some of these state laws have no carve out regarding workers in “safety-sensitive” positions and steep requirements regarding reasonable suspicion drug testing. These conflicting rules create an uncertain legal landscape for employers that requires them to consider legal risks from varying sources and balance operational priorities.
Expanding Employment Protections for Cannabis Users
Currently, 24 states and Washington, D.C, permit non-medical adult use of marijuana, and 38 states and D.C. allow some type of medical marijuana use. When states first passed these laws, most legislatures were silent on employment-related issues, which allowed employers to continue to include THC panels in their drug tests despite state-level legalization. But recently, states have passed additional regulations to provide more protections for marijuana users in the workplace.
As of January 1, 2024, several states restrict employers from taking adverse action against employees who test positive for marijuana, absent some other evidence of impairment. For example, New York prohibits employers from testing employees for THC at all, unless affirmatively required to do so by federal law. In Illinois, employers can test employees and applicants for THC, but cannot disqualify them from employment based on positive test results alone. Most recently, California and Washington passed employment protections, effective January 1, 2024, that prohibit disqualification from employment for positive tests for “non-psychoactive cannabis metabolites.” There are similar restrictions in Arizona, Connecticut, Delaware, Iowa, Michigan, Montana, New Jersey, New Mexico, Oklahoma, Pennsylvania, Virginia and Washington, D.C.
These laws support the idea that employers should not test for THC because workers could have consumed the marijuana or cannabis product legally while off duty. Instead, employers must show some additional evidence of impairment or possession of marijuana at work to justify drug testing and discipline.
Complying with Workplace Safety Obligations
State-level efforts to reduce employment barriers for marijuana users do not relieve employers of their obligation to maintain safe workplaces. Thus, employers must take reasonable steps to prevent at-work impairment among employees whose job duties may pose a risk to themselves or their coworkers. Further, there might be workers compensation premium incentives for employers with comprehensive drug testing programs or benefits exclusions for employees who test positive for drugs after being injured at work.
Several state laws regarding drug testing recognize potential conflicts with an employer’s workplace safety obligations. For example, laws in Connecticut and Washington limit the use of positive drug test results but do not apply to employees in “safety-sensitive” positions.
Other states, like New York and New Jersey, provide no such exception. New York goes so far as to say employers cannot test employees for marijuana at all or use the smell of marijuana or “other observable signs of use that do not indicate impairment,” like bloodshot eyes, to support discipline. Instead, employers must rely on “objectively observable indications that the employee’s performance of the duties of their position are decreased or lessened,” such as reckless operation of machinery. New Jersey allows drug testing and drug-free workplace policies in certain circumstances but does not allow employers to discipline based on positive tests for marijuana unless they also have “evidence-based documentation of physical signs or other evidence of impairment during an employee’s prescribed work hours.”
Given the extent of some state restrictions on drug testing or discipline, organizations should be sure they understand the details of the laws where they do business to determine what steps they may legally take to address potential impairment.
If states exempt safety-sensitive roles from drug testing restrictions, employers must analyze what roles might qualify for the exceptions. For example, New Mexico defines a safety-sensitive position as a position which “performance by a person under the influence of drugs or alcohol would constitute an immediate or direct threat of injury or death to that person or another.” Most states that define the term require some degree of foreseeable, serious injury based on the employee’s job duties. The unique facts of each job will determine whether an employee qualifies for a safety-related exception, so employers that wish to continue to use marijuana-related drug testing programs for disciplinary purposes in states with restrictions should analyze each position independently.
Documenting Evidence of Impairment
Organizations navigating the new patchwork of state laws regarding marijuana use should consider new ways to determine employee impairment. Since many states prohibit reliance on positive tests alone, employers should look for evidence of present impairment.
For example, if an employer recognizes articulable symptoms of impairment such as confusion, impaired speech, decreased responsiveness, or poor job performance, then the employer should document that evidence to support potential adverse action. Ideally, employers should have at least two supervisors who observe and can attest to any evidence of impairment. Some states, including New Jersey, urge through guidance that supervisors receive specific training on how to detect impairment to improve the reliability of any determinations that may lead to discipline.
Understanding and Balancing Dueling Obligations
Organizations with existing drug testing or drug-free workplace policies should review the relevant laws in their states of operation. Even if state laws purport to provide employment protections, employers should understand that they have concurrent obligations to maintain a safe and healthful workplace.
Thus, employers should consider whether state laws protecting employees from discipline may prejudice their ability to meet workplace safety obligations. If so, they must balance their dueling legal obligations. For example, while a drug testing program designed to reduce the risk of safety incidents might create some risk under state law, does it provide more value to the employer from a workplace safety perspective? Does the relevant state law provide employees with a private right of action or remedies through an administrative procedure that merit caution, or is it relatively toothless, supporting a more aggressive safety enforcement position from employers? The answers will likely vary by state, employer and even job position, but employers must understand the potential impact of these laws and make intentional choices about how to operate under them.