September 21, 2018
The Association hosted a conference call to discuss state laws and employer responsibilities surrounding drug testing, as the growing medical use of marijuana has been quickly followed by efforts to make marijuana available for adult recreational use.
“Off-the-job recreational drug use is not protected by the Americans with Disabilities Act, even when employees are using it in accordance with state law,” noted Nancy Delogu, Shareholder at Littler Mendelson P.C. Every state with a medical marijuana law says that employers may prohibit employees from coming to work impaired, but this is difficult to prove because a urine test doesn’t necessarily detect current impairment by marijuana.
Will employers stop testing for marijuana? This is the prediction from one of the companies on the call that plans to exclude marijuana from a random drug testing program it will soon implement. This is partly in response "to the changing landscape of marijuana legally and socially.”
Communicating company changes to employees: One of the companies on the call that is subject to the Department of Transportation standards said, “We update materials that are given to employees when they enter the job. We also have an employee portal by which we communicate changes in procedures. For example, we communicated changes in opioid procedures to employees in January via the portal. For marijuana use, employees know that we follow Department of Transportation standards," which contain strict prohibitions against marijuana use.
Employer practices regarding marijuana testing will continue to evolve. Five states have ballot initiatives expected to be voted on this year permitting recreational marijuana use. As of today, nine states and D.C. permit recreational and medicinal use of marijuana, and another 22 states permit medicinal use of marijuana. Eleven states or state courts have adopted employment protections for marijuana users.