Are Pre-employment Cannabis Tests on the Way Out?

Starting in 2020, employers in Nevada and New York City will no longer be able to reject a job applicant because of a failed pre-employment drug test for cannabis, due to new legislation recently brought in by state and city lawmakers.

Courts in Connecticut, Maine, and Massachusetts have previously found in favor of the job applicant in cases where an employer has pulled a job offer because of that prospective employee testing positive for cannabis. But the new laws from Nevada and New York City are among the first of their kind in setting guidelines for drug testing employees in this new age of legal cannabis.

New York City, Nevada pass initiatives to reform pre-employment drug testing

In Nevada, both medical and recreational cannabis use are fully legal under state law; whereas in New York state, only medical cannabis use is permitted.

Earlier this summer, New York’s state legislature was unable to secure enough support before the end of the legislative session to officially legalize the recreational use of the drug, despite cannabis legalization being one of Governor Andrew Cuomo’s key priorities for the year. But while statewide cannabis reform remains in question, the legislature has been able to grant municipalities, such as New York City, the power to locally regulate cannabis consumption within their own jurisdictions.

The new legislation around pre-employment testing in New York City is a part of this increased power to regulate cannabis locally. The legislation, Int. No 1455-A, bans employers in New York City from requiring prospective employees to submit to a pre-employment test for THC, or any other active ingredient in cannabis, as a condition of employment. Screening for cannabis use post-hire is still allowed

There are some exceptions to the new initiative. Those who are seeking to fill job openings that are federally contracted or that could have the potential to impact the health and safety of the public and other employees are permitted to continue requiring applicants to submit to pre-employment drug checks for cannabis – but only as determined by the department of citywide administrate services. This exception could apply to job positions such as teachers, construction workers, police officers, commercial drivers, and medical staff.

Nevada’s new law, AB 132, approaches the issue of cannabis pre-employment testing in a different way. Where New York City near-completely prohibits employers from having prospective employees submit to drug testing which includes cannabis screening, Nevada’s approach makes it unlawful for employers to deny employment as a result of a positive cannabis screening test. Additionally, employees who fail a drug test during their first month of employment will be able to challenge the finding and pay for a second test to be performed.

Like New York City, Nevada’s new law also includes several exemptions for public safety jobs, such as medical staff and firefighters, as well as for jobs which require mandatory drug testing under federal law.

Nevada’s law will go into effect from January 1, 2020, with New York City’s initiative compelling companies to comply with the new regulation by May 10, 2020.

 
More states likely to follow suit

New York City and Nevada aren’t the only places reforming their approach to cannabis and employment, states around the country are either looking at or are in the process of increasing protections for workers.

New Mexico recently brought into effect a new law, SB 406, which introduces a number of new reforms to their medical cannabis program. Included in this is an expansion of the types of condition that are eligible to be treated with medical cannabis, and several new protections for medical cannabis patients in the workplace. The law also prohibits employers from taking any “adverse employment action against an applicant or an employee based on conduct allowed under” the state’s medical cannabis laws, though it doesn’t specifically state what employers can do if an applicant or employee tests positive for cannabis in a drug test.

Similar new employment protections for workers who use cannabis medicinally have also passed this year in New Jersey and Oklahoma.

Illinois’ new HB 1438, which will legalize recreational cannabis use and sale when it comes into effect on January 1, 2020, also includes a number of employment protections for those who will choose to use cannabis recreationally while off-duty. For example, employers will be limited in making employment decisions on the basis of an employee testing positive for cannabis use. As cannabis can stay in the system for a long time after the initial impairment wears off, employers will instead be expected to take action only if the employee is noticeably under the influence or impaired while at work or on call.

 
Dealing with off-duty cannabis use in the workplace

Cannabis in the workplace has risen to prominence as a major issue in employment law as growing numbers of countries and states have chosen to legalize the medical and/or recreational use of the drug. Now, with millions of people living in areas where they can legally access cannabis, social and legal attitudes towards the drug in the workplace are undergoing a massive shift.

There is still a generational gap in the social attitudes towards cannabis at work. In one American survey, almost half of employees over 30 said that they would lose confidence in a colleague if that they found out they used cannabis.

“[Study respondents were] concerned about having to pick up the slack for a co-worker who may not be operating at full capacity,” said Dean Debnam, CEO of the survey leader Workplace Options.

“Employees are wary of the thought that their co-workers can get high after work and then come in the next day and function with no impact on their performance,” Debnam told Fortune.

The same study found that seventy percent of employees under the age of 30 would not have these hesitations. In addition, one in four told the pollsters that they themselves had previously at least once used cannabis within 12 hours of starting their workday, compared to just seven percent of those over-30 that reported doing the same.

Because of the continued federal prohibition of cannabis in America, workplace protections for those who use cannabis can vary greatly from state to state; even in areas where medical and recreational cannabis use are legal, protections can be minimal.

Guidance from Marijuana Doctors advises employees who are thinking about being open about their personal off-duty cannabis use in the work place to first consider what their workplace policy is surrounding drug testing, and whether their office environment might be welcoming or hostile in light of them revealing this personal information.