Katherine Miller, CAPM, Senior Director of Compliance Services at Current Consulting Group (CCG)
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While recent years have brought about major changes in the drug and alcohol testing industry, 2022 has likely brought about the most change. With multiple states legalizing medicinal and/or recreational cannabis, as well as the Department of Transportation (DOT) announcement of the Notice of Proposed Rulemaking (NPRM) for oral fluid, a lot has happened.
California Protects Off-Duty Cannabis Use
AB 2188 was signed into effect in September 2022, providing protections for off-duty cannabis use. The bill is unique in that it starts with a section of legislative declarations prior to the actual legal section. The following legislative declarations are made:
- Although THC can indicate impairment and cause psychoactive effects, after it is metabolized it is stored in the body as a non-psychoactive metabolite, meaning that the presence of THC does not indicate impairment.
- As such, many drug tests do not indicate that an employee is impaired, but rather indicate that there is the presence of non-psychoactive metabolites in the body that do not correlate with on-the-job impairment.
- Employers now have access to several tests that don’t rely on the presence of non-psychoactive cannabis metabolites, such as impairment tests or tests identifying the presence of THC in bodily fluids.
The bill then goes into the actual legislation. Employers are not permitted to discriminate in hiring, termination, conditions of employment, or otherwise penalize an individual if:
- They use cannabis off the job and away from the workplace.
- A required drug test finds non-psychoactive metabolites in their hair, blood, urine, or bodily fluid.
Employers can, however, discriminate in hiring, terms/conditions of employment, or otherwise penalize an individual based on a “scientifically valid” pre-employment test conducted using a method that does not screen for non-psychoactive cannabis metabolites.
Employees cannot possess, be impaired by, or use cannabis in the job. Employers still have the right/obligation to maintain a drug- and alcohol-free workplace. Employers in the building and construction trades are not required to comply with this bill. The bill is effective January 1, 2024.
DOT Issues NPRM for Lab-based Oral Fluid Testing
DOT announced their NPRM for lab-based oral fluid testing in February 2022, designed to add versatility and flexibility to DOT drug testing by allowing covered employers and agencies the ability to use oral fluid in addition to urine. The NRPM was broken into two sections, the first outlining why the addition of oral fluid was being proposed, and the second containing proposed verbiage of how the regulations will read. While the NPRM doesn’t make lab-based oral fluid available to DOT regulated employers currently, it is a step toward offering those employers the many benefits offered by lab-based oral fluid testing.
Maryland Legalizes Recreational Cannabis
Marylanders voted to legalize recreational cannabis in November 2022. Come July 2023 state residents will be able to possess up to 1.5 ounces of cannabis. The state constitution was amended to permit recreational cannabis, but no further guidance was provided. A companion bill was passed in early 2022 that provides initial guidance, but it also provides no guidance for employers. It is likely that prior to July 2023 the legislature will provide direction for employers.
Mississippi Legalizes Medical Cannabis
Mississippi’s road to legal medical cannabis has been rocky. Initially, voters passed a medical cannabis initiative in November 2020; however, in spring 2021 the initiative was struck down by the state Supreme Court as unconstitutional. In early February 2022, the legislature passed Senate Bill 2095 (SB 2095), which legalized medical cannabis in the state. SB 2095 permits the use of medical cannabis for severe debilitating medical conditions and was effective immediately upon receipt of the governor’s signature.
Under SB 2095, employers cannot be penalized or denied any benefit because of their employment of a medical cannabis card holder. Employers are not required to:
- Permit, accommodate, or allow the use of medical cannabis in the workplace.
- Modify the job or working conditions of an employee that uses or seeks to use medical cannabis.
- Reimburse or pay for costs associated with the use of medical cannabis.
Employers are not prohibited from:
- Refusing to hire, discharging, disciplining, or taking adverse employment action against an individual as a result (in whole or in part) of said individual’s use of medical cannabis, regardless of the individual’s impairment or lack of impairment resulting from the use of medical cannabis.
- Establishing or enforcing a drug testing policy.
- Disciplining employees for ingesting medical cannabis in the workplace or working while under the influence of medical cannabis.
Additionally, an employer has a right to administer drug and alcohol testing or require an employee to submit to drug and alcohol testing following a workplace injury. Generally, a positive test result allows the employer to presume that it was the proximate cause of the injury. The same can be said if an employee refuses to submit to a drug or alcohol test following a workplace accident.
Missouri Legalizes Recreational Cannabis
Voters in Missouri approved recreational cannabis in November 2022, legalizing the purchase, possession, consumption, use, delivery, manufacture, and sale of cannabis. Missouri Employers were provided with extensive guidance pertaining to workplace cannabis use (both medical and recreational).
Unless a failure to do so would cause the loss of a monetary or licensing-related benefit, employers cannot discriminate in hiring, termination, or any condition of employment if said discrimination is based upon:
- An individual’s status as a medical cannabis patient. This includes a medical cannabis patient’s legal use of medical cannabis off of the premises during nonworking hours unless the patient was under the influence of medical cannabis on work premises or during work hours.
- A positive drug test for cannabis or cannabis metabolites if the individual is a valid qualifying medical cannabis patient unless the patient used, possessed, or was under the influence of medical cannabis on work premises or during work hours.
This does not apply to employees in positions where the use of a cannabis product impacts their ability to perform job-related responsibilities, impacts the safety of others, or conflicts with a bona fide occupational qualification that is reasonably related to their employment.
Pertaining to recreational cannabis, the amendment states that employers can:
- Refuse to permit or accommodate conduct that is permitted by the amendment (use of recreational cannabis) at the workplace or on work property.
- Discipline employees for working while under the influence of cannabis.
- Refuse to hire, discharge, discipline, or take adverse employment action in terms of hiring, tenure, terms, conditions, or privileges of employment because said individual was working while under the influence of cannabis.
Cannabis use at the workplace is strictly prohibited, as is undertaking any task while under the influence if doing so would constitute negligence, recklessness, or professional malpractice. The amendment becomes effective December 8th, 2022, and cannabis will be available for purchase in February 2023.
New Jersey Issues Guidance on Workplace Impairment
In 2021 New Jersey legalized recreational cannabis and provided guidance for employers pertaining to workplace cannabis use. Included in the guidance were requirements for a Workplace Impairment Recognition Expert (WIRE) certification that can be issued to employees or contractors to demonstrate that an individual has undergone education and training to detect and identify an employee’s use of or impairment from cannabis or another substance. While the state has yet to issue WIRE certification specifics, additional guidance was given to employers earlier this year. The new guidance is not cannabis specific and can be used until WIRE standards have been formulated by the state.
Best practice in New Jersey is to establish protocols for documenting observed behavior and physical signs of impairment prior to performing a reasonable suspicion drug test. While eventually a WIRE can assist in this process, employers can currently continue to use other established protocols to document and develop reasonable suspicion of impairment, and then use that documentation paired with a drug test to determine that an individual violated the drug-free workplace policy.
Under the new guidance, employers have the right to:
- Maintain a drug-free workplace consistent with state law(s).
- Require employees to submit to drug testing:
- When there is reasonable suspicion of cannabis/cannabis product use while engaged in work responsibilities;
- After documenting/observing signs of impairment related to cannabis use;
- As part of a random testing program; or
- Following a work-related, employer investigated accident.
Employers cannot take action based solely on the presence of cannabinoid metabolites in body fluids. However, such a test could be combined with evidence-based documentation of impairment during work hours and may then be sufficient to support adverse employment action.
The guidance contains specific guidance as to how employers can document signs and evidence of impairment, as well as a sample Observation Report that can be used. Employers may choose to use cognitive impairment tests (consistently repeatable standardized automated tests of impairment and/or ocular scans) as physical signs/evidence to establish reasonable suspicion of cannabis use or impairment.
Rhode Island Legalizes Recreational Cannabis
In May 2022 the Rhode Island governor signed the Rhode Island Cannabis Act, legalizing recreational cannabis in the state. Retail sales are permitted as of December 2022; however, it is unlikely that many retail stores will be open at that time.
Employers are not required to:
- Accommodate the use of medical or recreational cannabis in the workplace.
- Accommodate individuals being under the influence of cannabis at work.
- Accommodate the use of cannabis in the location while performing work, including remote work.
- Prohibit the use or possession of cannabis in the workplace.
- Prohibit working while being under the influence of cannabis.
- Refuse to hire, discharge, discipline, or take adverse employment action against an individual because they violate a policy or work while under the influence of cannabis.
The law stipulates that unless the use/possession of cannabis is prohibited pursuant to a collective bargaining agreement, an employer cannot fire or discipline an employee solely based on the employee’s private use of cannabis outside of the workplace as long as the employee does not work while under the influence of cannabis. This does not apply to certain employers that are detailed in the law.
So, What’s Next?
While it’s likely that more changes will come with the new year, employers in impacted states should immediately review their workplace testing policies to ensure compliance. Need help updating and/or rewriting your policy? Contact CCG’s policy experts at [email protected] to learn how we can assist.
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