Can I Still Conduct Drug Testing if Marijuana Has Been Legalized in My State?

Employment Drug Testing

If marijuana and its compounds are illegal federally, how are employers and employees affected in states where marijuana use is permitted?

Employment drug testing is often surrounded by questions — when, how, who? Changes in the law only add new questions to the list.

Many states have legalized recreational and/or medical marijuana. Under federal law, however, marijuana is still an illegal substance. So how can business owners reconcile federal and state laws with their employment drug testing policies?

Marijuana Use at the Federal Level

Under the Controlled Substances Act, marijuana is designated as a Schedule I drug. As Forbes reports, in December 2016, the Drug Enforcement Agency (DEA) established new and highly controversial rules for marijuana extracts, implicating an additional compound found in marijuana plants called cannabidiol, or CBD. CBD — unlike tetrahydrocannabinol (THC), which is also present in marijuana — is not intoxicating and may have medical benefits, according to Forbes. But while many CBD-only products have been shipped across state lines under the claim that these products are legal at both the state and federal level, the DEA does in fact classify CBD as a Schedule I drug, according to the Brookings Institution. Now the federal government is treating more marijuana compound products — hemp oils, for example — as illegal, further complicating matters for employers.

How Does Federal Law Impact State Use and Employment?

If marijuana and its compounds are illegal federally, how are employers and employees affected in states where marijuana use is permitted? How might a business develop or revise drug testing policies when laws contradict one another?

The bottom line is this: Employers may generally test for federally illegal substances and some positions, such as certain government positions, may require employers to test for drug use, including marijuana. Employers who intend to impose such tests for marijuana should ensure the test is either required by law, or supported by other rationale such as safety sensitive positions.

Do Employers Have to Accommodate the Use of Medical Marijuana in the Workplace?

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals on the basis of disability — defined as a physical or mental impairment that substantially limits one or more major life activities — including employees who have a history or record of such an impairment or those who are regarded as having such an impairment. A qualified individual with a disability "shall not include any employee or applicant who is currently engaging in the illegal use of drugs" like marijuana, according to the ADA. Courts have agreed that medical marijuana use does not enjoy the protections of the ADA.

However, state courts and state discrimination laws may not always be in accordance with federal rulings, especially when state law permits medical or recreational marijuana. For example, in July 2017, the Massachusetts Supreme Judicial Court held unanimously that an employee may pursue a state law disability discrimination claim for an employer failing to accommodate an employee's use of medical marijuana. This decision was the first of its kind to recognize such an obligation to accommodate. Because of this, companies should consult with legal counsel on their policies and procedures surrounding employee drug testing and marijuana use.

With federal and state legal waters becoming murkier, employers must take careful steps when implementing their employment drug testing policies and procedures when it comes to marijuana and marijuana compound products. As this will likely be an area of additional changes, employers will want to stay abreast of changes to remain compliant at all levels of the law.

This article provides general information and should not be construed as legal, HR, financial, insurance, tax or accounting advice. You should consult with your own legal counsel, human resource, accounting or other professional advisor for circumstances pertaining to your business.