High Times in Drug Screening: What You Need to Know About Marijuana Legalization

Chances are, you haven’t heard this much about marijuana since college. As of December 2019, 33 states have legalized medical marijuana and 11 have approved adult recreational use. When it comes to drug screening this certainly muddies the waters, particularly as hiring managers face increased pressure to do more due diligence in background checks for gig economy positions. Here’s what you need to know and how it may impact your drug screening policy.

Marijuana in the Gig Economy

According to Upwork, 35 percent of Americans are part of what is known as the “gig economy.” Yet regardless of the benefits, they offer companies, this workforce doesn’t get a pass on proper vetting. One key area is in drug screening. Of course, good judgment is important in any position, but for many gig employers, safety is of top concern as their workforce has direct and regular interaction with customers. 

With Quest Diagnostics reporting that marijuana is the most commonly detected illicit substance across all workforce categories in the United States, it may seem like its legalization (and the corresponding impact on drug screenings) could put your company at risk.  Before you panic, let’s take a closer look.

The Facts on Drug Screening and Marijuana

A variety of new developments come into play this year that may impact your drug screening in regards to marijuana.  Here’s our summary by state as reported in the Drug and Alcohol Testing Law Advisor.

Illinois – The Cannabis Regulation and Tax Act went into effect on January 1, 2020, and allows anyone over the age of 21 to possess, use, or buy marijuana in the state. 

Key Takeaways

• Although marijuana is considered a “lawful product,” employers can conduct “reasonable suspicion” and post-accident drug testing for marijuana, in accordance with the requirements of the Act. 
• While the initial Act did not authorize pre-employment marijuana testing or random marijuana testing, it was amended on December 4, 2019, to permit drug testing for marijuana and to take disciplinary action for positive marijuana test results.

Nevada – Pre-employment drug testing for marijuana is illegal in the state as of January 1, 2020. 

Key Takeaways

• This law doesn’t apply to positions such as firefighters, emergency medical technicians, operators of motor vehicles who are required to submit to drug tests, or other positions that “in the determination of the employer, could adversely affect the safety of others,” or to positions funded by a federal grant.
• If an employer requires an employee to submit to a drug test within the first 30 days of employment, they have the right to submit to an additional drug test, at his or her own expense, to challenge the initial test and the employer “shall accept and give appropriate consideration to the result of such a screening test.”

New York – Effective May 10, 2020, the New York City Human Rights Law will prohibit pre-employment marijuana drug tests. 

Key Takeaways

• The law will not apply to applicants for certain types of jobs, including those with law enforcement or investigative functions, certain types of construction and maintenance jobs, any position requiring a commercial driver’s license; any position requiring the supervision or care of children, medical patients or vulnerable persons, and/or any position with the potential to significantly impact the health or safety of employees or members of the public.
• The law specifically does not apply to drug testing required by the U.S. Department of Transportation, contracts between the federal government and employers that require drug testing of prospective employees as a condition of receiving the contract or grant; any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing.

New Jersey – The state’s medical marijuana law was amended in July 2019 to prohibit employment discrimination against medical marijuana users. 

Key Takeaways

• Employers are still permitted to prohibit marijuana use during work time and on Company premises. 
• Employers are now required to provide written notice to all applicants and employees who test positive for marijuana giving the applicant or employee an opportunity to provide a “legitimate medical explanation for the positive test result.” 

Oklahoma – Oklahoma’s medical marijuana law was amended in August 2019 to clarify aspects of the state’s existing medical marijuana law. 

Our Key Takeaways:

• Employers cannot refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of their status as a medical marijuana licensee. 
• Employers cannot refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive drug test result for marijuana unless they are not in possession of a valid medical marijuana license, they are under the influence of medical marijuana while at work or during the fulfillment of employment obligations or the position involves safety-sensitive job duties. 

In addition, other state legislatures are expected to make decisions around marijuana legalization this year according to Forbes. Keep an eye on Vermont, New Mexico, Connecticut, Rhode Island, Pennsylvania, Arizona, Florida, Ohio, Montana, Arkansas, Idaho, Missouri, Mississippi, Nebraska, North Dakota, and South Dakota.

Drug Screening Going Forward

The only thing certain here is that the legalization of marijuana will remain the subject of much debate for some time to come. In the absence of any national standards for drug screening and/or background checks for gig economy positions, you might feel the tedious task of monitoring state legislatures to ensure compliance will fall on your already overworked shoulders. But it doesn’t have to be that way.  With compliance automation, due diligence can be achieved and you can feel confident in your hires again. It just so happens, we know a partner that can help you each step of the way.

See how Vetty has helped companies just like yours achieve speed, accuracy, and scalability with high volume placements in today’s gig economy.

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