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2020 drug testing in the workplace law changes
By: Yvette Farnsworth Baker, Esq. and Katherine Miller Current Consulting Group on Dec 17, 2020 12:06:50 PM
This information is provided for educational purposes only.Reader retains full responsibility for the use of the information contained herein.
While 2020 felt like it centered around the Covid-19 pandemic and the presidential election, there were changes to states’ drug testing and controlled substances laws that made their way onto legislators’ agendas. While legislation unrelated to Covid-19 stalled for a few months, state legislators did pass many laws by the end of 2020 that impact drug testing in the workplace.
General Drug Testing Law Changes by State
Alabama passed a law that made it a criminal offense to use or distribute synthetic urine or urine additives for the purpose of defrauding a drug screen. The intent is that this will reduce incidents of drug test cheating within the state.
The state of New York expanded its requirements for mandatory pre-employment drug testing to include certain for-hire drivers. The new law requires all drivers of for-hire vehicles transporting 10 or more people at a time to submit to mandatory pre-employment drug testing. This drug testing must comply with the requirements of 49 CFR Part 40, and applies to all drivers regardless of their Commercial Driver’s License (CDL) status.
Oklahoma set aside funds in order to develop a marijuana breathalyzer pilot program.
Utah made changes to their workers’ compensation program related to alcohol testing and denial of claims based on alcohol intoxication. The legislature reduced the blood and breath alcohol concentrations at which an employer can presume that intoxication was the major contributing cause of an employee’s injuries. The blood and breath alcohol concentrations were also reduced relating to other factors affecting workers’ compensation and disability claims.
West Virginia made similar changes to its unemployment compensation program. The state amended its unemployment compensation statute to provide that if an employee is terminated due to violation of an employer’s drug or alcohol policy, the employee, if injured at the time of the intoxication, forfeits indemnity benefits under workers’ compensation laws. The employee is required to have received notice of the drug or alcohol policy prior to the incident. The amendment also clarifies that violation of an employer’s drug- or alcohol-free workplace program can still be grounds for a finding of gross misconduct.
State Law Changes Related to Marijuana
Additionally, many states made changes to their cannabis laws in ways that could affect the workplace going forward. This article will not discuss cannabis laws that were passed in 2020 through voter initiatives on the November ballot, but only covers laws passed by the state legislatures up to the date of publication.
The state of Delaware created a CBD-rich medical marijuana card to treat anxiety in adults. Delaware established a medical marijuana program in 2011, but anxiety was not included as a qualifying condition.
Iowa passed amendments to its medical cannabis law. The law changed THC limits from 3% to 4.5 grams per patient per 90 days, with an exception for certain terminally ill patients. The law also added new medical conditions to the list of permitted medical conditions and replaced “untreatable pain” with “chronic pain.”
Importantly, Iowa’s medical cannabis amendments included several provisions protecting workplace policies. The law clarifies that employers are permitted to establish zero-tolerance marijuana policies and may prohibit marijuana use by employees in contracts. The law also clarifies that the state cannabis law does not create a claim for adverse employment action due to marijuana use by employees. Unemployment compensation may be denied if an employee used marijuana in the workplace, was under the influence while working, or tested positive for any other controlled substance without a prescription. Health insurance and worker’s compensation are also not required to reimburse for medical marijuana.
The state of Maryland increased the amount of marijuana below which possession is a civil offense, rather than a criminal offense. Maryland also authorized medical marijuana for treating traumatic brain injuries and concussions, and amended certain restrictions regarding caregivers of medical marijuana patients.
Utah made amendments to its medical marijuana law, including employer protections. The amendments include a provision that states that nothing in the law requires a private employer to accommodate the use of medical marijuana in the workplace, and that employers retain the right to have policies restricting the use of medical marijuana by applicants or employees.
Marijuana was decriminalized to a certain extent in Virginia in 2020. Simple marijuana possession and possession of CBD oil now carry only a civil penalty in the state. Possession of marijuana was changed from a primary offense to a secondary offense, which means that a summons for marijuana possession can only be issued if an individual is stopped for another offense. An offender cannot be stopped solely for simple possession of marijuana.
Washington, DC passed new laws related to medical marijuana and public employers this year. Public employers cannot refuse to hire, terminate from employment, or take adverse employment action against individuals based on their status as a qualifying medical marijuana patient unless the individual used, possessed, or was impaired by marijuana at their place of employment or during employment hours. This law does not apply to private employers.
While big events of 2020 may have slowed the pace of state legislation, we still saw many of the trends we have come to expect over the last few years. Cannabis law continued to advance, at times with provisions that directly discuss the workplace. Drug use and drug testing continue to be issues on the minds of lawmakers, even in tumultuous years.
If you haven’t looked into your drug policy recently, it’s critical that you consider updating your policy to make sure it adheres to current laws. Let Orange Tree help you protect your organization with a strong drug testing policy.
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