Category Archives: Drug testing

NEW LAW: Michigan Legalizes Recreational Marijuana

On November 6, 2018, voters in Michigan passed Proposal 18-1 (the “Michigan Regulation and Taxation of Marihuana Act,” which legalized the recreational use* of marijuana for individuals 21 and over.  With the passage of this new law, which goes into effect 10 days after election results are officially certified, there are now 10 states** (and Washington DC) that have legalized recreational marijuana.

While the new law certainly brings new concerns into the Michigan workplace, as employers will undoubtedly be concerned about how to respond to an employee’s use of marijuana outside of work, the new law contains several provisions that are helpful to employers. Continue reading NEW LAW: Michigan Legalizes Recreational Marijuana

NEW LAW: Missouri Legalizes Medicinal Marijuana

On November 6, 2018, voters in Missouri passed Amendment 2 (the Medical Marijuana and Veteran Healthcare Services Initiative) which legalized the use of marijuana for medicinal purposes in Missouri.  With the passage of this new law, Missouri becomes the 33rd state to legalize medicinal marijuana.

Under the new law, individuals with qualifying conditions* will be able to obtain permission from their physician to legally use marijuana for medicinal purposes.  However, while medicinal marijuana use will be legal, the law is clear that employers will still be able to enforce their drug-free workplace policies prohibiting employees from working under the influence of marijuana and will be able to discipline employees for violating that policy. Continue reading NEW LAW: Missouri Legalizes Medicinal Marijuana

NEW LAW: New Drug Free Workplace Requirements For Tennessee Employers

 

The Tennessee Department of Labor recently published revised regulations relating to the Tennessee Drug-Free Workplace Act.  While employer participation in this program is voluntary, employers who choose to participate in the program must meet certain criteria relating to drug testing, training and employee notice of the drug testing policy.

The new regulations have significantly changed some of these criteria in the following areas:

  • Types of drugs employers are required to test for. This list has been revised to mirror the types of drugs the federal Department of Labor currently tests for (marijuana, cocaine, amphetamines, opioids, PCP, and alcohol.
  • Impact of positive test for other substances. While employers are still permitted to test for other substances, a positive test result no longer creates a presumption that workers’ compensation and/or unemployment benefits should be denied.
  • Lower blood alcohol content threshold for all employees. The threshold for a positive blood alcohol test for employees in on-safety-sensitive positions has been lowered to 0.04 (from 0.08).  This is now the same as the blood alcohol level for employees in safety-sensitive positions.
  • Newly defined “reasonable suspicion”. Employers are required to conduct reasonable suspicion drug testing, but the definition of reasonable suspicion has been expanded to include “an accident which results in an injury to another individual or in property damage exceeding $5,000.”
  • Shorter time frame for documentation of reasonable suspicion.  Employers always had a duty to document their basis for reasonable suspicion drug testing, but now they must document the basis for reasonable suspicion within 24 hours and provide that basis to the employee within that time frame.
  • New employee training requirements. Employers have always had a requirement to train employees regarding the Drug Free Workplace Program.  Now employers only have to provide that training to employees one time during the employment relationship (as opposed to annually).  The training must be provided within 60 days of the employer’s adoption of a Drug-Free Workplace Program or within 60 days of the employee’s hire date.  In addition, employers are required to provide supervisors 2 hours of training related to its Drug Free Workplace Program, but that training only need be provided once.  The training must include information on the employer’s Drug-Free Workplace Program policies, testing procedures, consequences for violation the policies, the specific drugs to be tested for, and any substance abuse or employee assistance programs available to employees.

It is recommended that employers who currently participate in the Tennessee Drug Free Workplace Program (or think they want to) review the new regulations.

NEW GUIDANCE: Vermont Attorney General Issues Guidance On Vermont’s Marijuana Law


The Vermont Attorney General recently issued the Guide to Vermont’s Laws on Marijuana in the Workplace, which provides employers with an overview of the changes to Vermont’s marijuana laws, and summarizes existing employment laws relating to drug testing in the workplace.

Vermont’s  recreational marijuana law legalized marijuana for recreational use starting July 1, 2018.  This new law left employers wondering what rights they had to control drug use within their workforce.  The new Guide clarifies that employers maintain certain rights with respect to employee drug use, including: Continue reading NEW GUIDANCE: Vermont Attorney General Issues Guidance On Vermont’s Marijuana Law

NEW LAW: Oklahoma Voters Approve Ballot Initiative Legalizing Medical Marijuana

On June 26, 2018, Oklahoma voters passed State Question 788, which legalizes marijuana use for medical purposes in Oklahoma.   With the passage of this ballot measure, Oklahoma became the 30th state to pass a medical marijuana law.

The new law goes into effect on July 26, 2018, and does have some implications for Oklahoma employers.  Specifically, the law prohibits employers from taking action against applicants or employees solely based on their status as a medical marijuana license holder or due to a positive drug test result.

While the new law does prohibit employers from discriminating against medical marijuana license holders, employers are permitted to take action against a holder of a medical marijuana license holder if the holders use or possess marijuana while in the holder’s place of employment or during the hours of employment.

Take Home For Employers Continue reading NEW LAW: Oklahoma Voters Approve Ballot Initiative Legalizing Medical Marijuana

Iowa “Relaxes” Drug and Alcohol Testing

As many employers in Iowa know, the state has one of the more detailed and complex laws when it comes to drug and alcohol testing. In fact, Iowa has a reputation for having the toughest drug and alcohol testing statute in the country with policy and training requirements, permissible types of testing, and written notice requirements for positive test results.  However, effective July 1, 2018, Iowa will loosen the reins slightly to give employers more latitude when it comes to alcohol testing.

Iowa Drug and Alcohol Testing

Iowa’s drug and alcohol testing law permits employers to test for a wide-range of purposes including random and unannounced, reasonable suspicion, post-accident, and when an employee seeks to return after completion of rehabilitation.  However, prior to conducting any testing, employers must adopt a comprehensive drug and alcohol testing program.  This program includes: Continue reading Iowa “Relaxes” Drug and Alcohol Testing

NEW LAW: Recreational Marijuana Legalized in Vermont

On January 22, 2018, Vermont Governor Phil Scott signed House Bill 511 into law.  This new law legalizes the use (and possession) of marijuana for recreational purposes in Vermont starting July 1, 2018.

Under the new law, all penalties for possession of one ounce or less of marijuana will be eliminated.  It also allows adults (persons over 20 years of age) to grow up to two mature and four immature marijuana plants.  The new law does not permit people to use marijuana in “public places” (e.g. streets, parks, public buildings, places of public accommodation and places where the use of tobacco products is prohibited).

Impact on Employers

The new law also makes it clear that the legalization of marijuana for recreational purposes does not create any employment-related protections.  Specifically, the new law does not do any of the following:

  • Require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace;
  • Prevent an employer from adopting a policy that prohibits the use of marijuana in the workplace;
  • Create a cause of action against an employer that discharges an employee for violating a policy that restricts or prohibits the use of marijuana by employees; or
  • Prevent an employer from prohibiting or otherwise regulating the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana on the employer’s premises.

What does this mean?  Simply put, Vermont employers are still permitted to prohibit employees from smoking pot in the workplace and/or from coming to work under the influence of marijuana. In addition, pre-employment drug testing and reasonable suspicion drug testing for marijuana use remain lawful. However, employers should remember that current drug tests only flag whether THC (the active ingredient in marijuana) is present in the individual’s system and does not determine the level of a tested individual’s impairment. This means that an individual can test positive for marijuana without being “high.” It is recommended that employers train frontline supervisors and managers will need to be more vigilant about documenting independent indications of impairment in the workplace such as unusual sleepiness, slowed perception and motor skills, and red eyes.

NEW LAW – New Reporting Requirements for Tennessee Employers of Healthcare Practitioners

Starting July 1, 2017, Tennessee healthcare practitioner employers have new reporting requirements relating to a healthcare practitioner’s positive drug test result and/or refusal to submit to any work-related or directed drug test, including pre-employment drug tests.

Under the new law, within three days of a positive drug test result, a healthcare practitioner must either:

  • produce a lawful prescription for the drug or a valid medical reason for using a drug to their employer; or
  • report to the state’s substance abuse peer assistance or treatment program of the healthcare practitioner’s board.

If the healthcare practitioner fails to complete either of these steps, the employer must report the positive drug test result and/or refusal to test to the Tennessee Department of Health and the appropriate licensing board. There is no obligation for the employer to report positive drug tests or test refusals to other healthcare employers.

These requirements do not apply to positive alcohol tests or refusals to submit to alcohol testing.

NEW LAW – Florida Passes Medical Marijuana Law

Last November, Florida voters approved an amendment to the Florida constitution legalizing the use of marijuana for medicinal purposes. (see Impact of Florida’s New Medical Marijuana Law on Employers)

Under this amendment, the Florida legislature had until July 3, 2017 to implement regulations that provide guidelines on the implementation of the state’s Constitutional Amendment regarding medical marijuana. Last week, Florida Governor Rick Scott signed Senate Bill 8-A, which addresses the medical use of marijuana in Florida.

The constitutional amendment legalized the use of medical marijuana for persons with specific “qualifying conditions” including cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, post-traumatic stress disorder, amyotrophic lateral sclerosis, Crohn’s disease, Parkinson’s disease, multiple sclerosis, chronic nonmalignant pain, and comparable medical conditions).

Under the new law, “medical use” does not include possession, use, or administration of marijuana that was not purchased or acquired from a medical marijuana treatment center.  In addition, the only permissible use of medical marijuana is consumption as edibles, vaping, oils, sprays or tinctures. The smoking of medical marijuana is not permitted under the law.

In addition, the new law includes some employer-friendly provisions:

  • The term “medical use” does not include use at a qualified patient’s place of employment, except when such use is permitted by his or her employer.
  • The law does not limit the ability of an employer “to establish, continue, or enforce a drug-free workplace program or policy.”
  • Employers are not required to “accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.”
  • Medical marijuana is not reimbursable under the Florida Workers’ Compensation Law.
  • The law “does not create a cause of action against an employer for wrongful discharge or discrimination.”

Recommendations for employers

It is recommended that Florida employers review their drug and alcohol policies to determine whether any revisions are required.

NEW LAW – West Virginia Medical Cannabis Act

West Virginia employers – medical marijuana is now legal in West Virginia.

Under the newly enacted West Virginia Medical Cannabis Act, patients suffering from serious medical conditions (including cancer, ALS, HIV/AIDS, multiple sclerosis, Parkinson’s disease, epilepsy, neuropathies, Huntington’s disease, Crohn’s disease, post-traumatic stress disorder, intractable seizures, sickle cell anemia, severe chronic or intractable pain, or certain spinal cord damage) are permitted to use marijuana for medicinal purposes.

Under the new law, employers are not required to accommodate the use of marijuana at work, and may discipline employees who are “under the influence” of marijuana at work. however, the new law does contain a broad anti-discrimination provision that prohibits employers from “discharging, threatening, refusing to hire or otherwise discriminating or retaliating against an employee regarding an employee’s compensation, terms, conditions, location or privileges solely on the basis of such employee’s status as an individual who is certified to use medical cannabis.”

Despite this “anti-discrimination provision,” the law prohibits medical marijuana patients employed in certain “safety sensitive positions” from doing the following when under the influence of medical marijuana:

  • Operating or being in physical control of any of the following:
    • chemicals which require a permit issued by the federal government, state government, federal agency or state agency;
    • high-voltage electricity or any other public utility;
    • vehicle, aircraft, train, boat or heavy machinery;
  • Performing any employment duties at heights or in confined spaces, including, but not limited to, mining
  • Performing any duty which could result in a public health or safety risk

Recommendations

It is recommended that West Virginia employers review their drug and alcohol policies and consult with an HR Professional or qualified employment attorney to determine if their policies are compliant with the new law.