As more and more states relax their marijuana laws, a growing number of employers have begun to wrestle with the implications for employment and to legislate accordingly. These new state laws and their different provisions have important ramifications for employers— and can also be complex and confusing to navigate. This article will provide an update on state marijuana laws and their current impact on employment, including:
- the context for these new state laws
- what new laws in California and New Jersey mean for employers in those states and for how they screen for marijuana
- other states that have marijuana laws that affect employment
- how a reliable background check provider like Orange Tree can help employers stay current in their compliance with these laws while continuing to provide a safe, drug-free work environment
Unsure what new state marijuana laws could mean for your drug testing policies and procedures? Orange Tree’s dedicated team is here to help you design a background screening program that's in your best interest.
The Context for New Marijuana State Laws That Affect Private Employers
State laws that address employment practices relating to marijuana use are relatively new. They also reflect a unique and somewhat conflicted moment in America’s history with cannabis. For instance, federal law still defines marijuana as a Schedule I drug and in the same class as heroin, with no medical value and a high potential for abuse. This means marijuana testing is still required for federally regulated positions like those that involve safety-sensitive duties.
Meanwhile, 19 states have decriminalized recreational marijuana, and 37 states have legalized medical marijuana. This rapidly changing legal terrain reflects a sea change in public opinion. A poll by the Pew Research Center conducted in April 2021 found “Americans overwhelmingly say marijuana should be legal for recreational or medical use.”
Today marijuana is the most used, federally illegal drug in the U.S., the Centers for Disease Control has said, and a Gallup poll conducted in August 2022 found that more Americans smoke marijuana than cigarettes. The same poll reported that cannabis use was at an all-time high.
Conflicting state and federal laws have introduced new employment challenges for some companies. Because cannabis remains illegal at the federal level, many large employers still maintain a zero-tolerance policy that prohibits the use of cannabis for even strictly medical purposes. At the same time, though, many other employers are having to modify existing practices like employee drug testing because of these new state laws.
What New State Laws Mean for Marijuana Testing in the Workplace
Emerging state laws are taking different approaches to employee marijuana use and what is required of employers that conduct drug testing. Because regulations can differ from one state to another—even some cities have their own rules—it is important to research the marijuana laws that impact your place of operation. What follow are two examples of recent state laws that differ in what they require of employers regarding marijuana testing in the workplace.
California’s Assembly Bill 2188 (AB 2188), which goes into effect in January 2024, is the more recent example of the two. In September 2022, California became the latest state to legislate certain drug testing protections for workers who use cannabis off the clock and outside the workplace. AB 2188 protects workers from discrimination or reprisal if they fail urine drug tests that detect the presence of inactive cannabis compounds or metabolites (from marijuana use days and weeks earlier).
At the same time, AB2188 upholds an employer’s right to maintain a safe, drug-free workplace via certain types of drug testing. (In other words, the bill does not prohibit all forms of marijuana testing to determine whether an employee may be impaired or under the influence while at work.) AB2188 upholds an employer’s right to maintain a safe, drug-free workplace, however because the type of testing required in the statute dictates a very short detection window, certain types of drug testing may be problematic for pre-hire drug test policies.
New Jersey’s Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, also known as the CREAMM Act, legalized recreational marijuana for those 21 and older in 2021. The act allows employers to test for marijuana use in the hiring process and conduct regular screenings of employees.
“Reasonable suspicion testing” is another provision of the CREAMM Act. So is marijuana testing after a work-related incident. In the case of reasonable suspicion testing, employers will have to employ a certified “Workplace Impairment Recognition Expert” (WIRE). The training and educational requirements of this new WIRE position have yet to be announced, but in the meantime, New Jersey has issued these guidelines for employers:
- An employee “shall not be subject to any adverse action by an employer solely due to the presence of cannabinoid metabolites in the employee’s bodily fluid.”
- Employers have the right to maintain a drug-free workplace. This means they may administer a drug test if: they have reason to believe that an employee is using cannabis while on the job; if an employee shows signs of cannabis-related impairment at work; following a work-related accident; and as part of a random drug test program.
What Other States Have Marijuana Laws That Protect Workers?
California and New Jersey are among seven states and the District of Columbia—the other states being Nevada, New York, Connecticut, Montana, and Rhode Island—that have legislated employee protections with respect to recreational marijuana. More states (21 thus far) have laws protecting workers who use marijuana for medical reasons.
Some aspects of employment should remain the same under these laws. For example, employers may still discipline workers for showing up to work high or bringing marijuana paraphernalia onto company premises. Other aspects of the workplace, such as drug testing and hiring policies, may change. Exactly how may depend on the state.
How Orange Tree Can Help
Maintaining a safe, drug-free workplace should be an important priority, but staying current with ever-evolving marijuana laws can create unnecessary stress and headaches for already busy HR executives. At Orange Tree, we’re able to help our clients seamlessly and conveniently manage different drug screening panels by location, in compliance with state laws. To learn how we can design a drug testing plan that is right for you, schedule a meeting today for a free consultation.
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