Some states have enacted laws that regulate the use of drug screening in the background screening process. The laws can vary by state and most commonly include providing the applicant with a copy of your Drug Screening Policy and not requiring the drug test until AFTER an offer of employment.
Marijuana testing
Connecticut prohibits marijuana testing for pre-employment; HOWEVER there are many exceptions to this prohibition under CT law.
See https://fadv.com/blog/connecticut-recreational-cannabis-drug-testing-impacts/
Nevada and New York City and NEW YORK passed the first laws in the country prohibiting using positive tests for marijuana to deny employment WITH LIMITED EXCEPTIONS. See below for details.
Oklahoma offers protections of medical marijuana users and prohibits employers from using a positive test for marijuana as the sole reason for denying employment of applicants with a valid medical marijuana license. See below for more details.
New Jersey offers protections for medical marijuana users as well. See below for details.
For additional information, please see the resource compiled by Paycor for all 50 states:
Pre-Employment Drug Testing Laws by State
Below we’ve highlighted some states that have more unique requirements:
Employers are not required to accommodate the use of medical marijuana. See blog: https://fadv.com/blog/alabama-medical-cannabis-drug-testing-impacts-may-2021/
Under the new law, individuals 21 and older are permitted to possess, consume, and transfer marijuana.
Employers are not required to accommodate the use, consumption, possession, transfer, display, transportation, sale, or cultivation of marijuana in the workplace
Under the new law, adults can use recreational marijuana in limited circumstances.
Employers are generally required to accommodate the use of recreational marijuana, subject to numerous employer and employee exemptions.
Please see update: https://fadv.com/blog/connecticut-recreational-cannabis-drug-testing-impacts/
Testing permitted after applicant receives drug-testing policy and a conditional employment offer and only if all job candidates are tested
Employers are not required to permit or accommodate recreational marijuana in the workplace or on work property.
See blog: https://fadv.com/blog/montana-cannabis-drug-testing-impacts-may-2021/
In January 2020, Nevada became the first state to prohibit denying employment for testing positive for marijuana.
There are exceptions for positions like EMT, Firefighter, positions funded by federal grant, motor vehicle operations and positions that the employer determines can affect the safety of others.
New Jersey employers may not make an “adverse employment action” against an employee solely because of medical marijuana use; however, the employee must be properly registered with New Jersey’s Cannabis Regulatory Commission to enjoy this protection.
Employers cannot simply terminate or discipline an employee or refuse to hire an applicant solely due to a positive marijuana drug test. Employers must be careful to provide employees and job applicants with time to review the results and provide an explanation. Employers must provide this notice in writing with a notice of the employee’s right to provide a legitimate explanation for the positive test result, including providing the employer with a copy of his or her medical marijuana authorization card or other type of proof of registration with the Commission. The employee or job applicant then has three working days to respond. The employee also has a right to request a retest of the original sample at his or her own expense.
Employers can still maintain a zero tolerance policy with respect to recreational cannabis use.
See blog: https://fadv.com/blog/new-mexico-recreational-cannabis-drug-testing-impacts-april-2021/
An employer may NOT test for marijuana with very limited exception. See below.
An employer MAY test for marijuana if:
federal or state law requires drug testing or makes it a mandatory requirement of the position. (See e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)
Applicability
As detailed in the guidance it is important to note that the law does NOT apply to the following:
- Students (that are not employees)
- Independent Contractors
- Individuals working out of familial obligations
- Volunteers
New York City bans pre-employment screening for marijuana use except for safety and security sensitive jobs and jobs bound by a federal or state contract or grant.
Effective: 05/10/2020
Applicant testing authorized with advance notice to applicant and after offer of employment has been made. Notice must be in writing, describing methods, procedures, and policies in detail.
Employers may not use a positive marijuana as the sole reason to deny employment if the applicant has a valid medical marijuana license.
unlawful employment practice for an employer, labor organization, employment
agency or agent thereof to require a prospective employee to submit to testing for the presence of marijuana in such prospective employee’s system as a condition of employment.
Exceptions for:
– Police or other law enforcement officers
– Any position requiring commercial DL
– Any position requiring the supervision or care of children, medical patients,
disabled or other vulnerable individuals
– Any position in which the employee could significantly impact the health or
safety of other employees or members of the public
– positions where a federal or state statute requires drug testing
– contract positon with state or federal government that requires drug testing
– drug testing agreed to as part of a collective bargaining agreement
CANNABIS:
Can be used for physician-certified debilitating medical conditions
Under Measure 26, employers are not required to permit medical marijuana ingestion in the workplace or employees working while under the influence of marijuana. Qualifying patients are not to be considered under the influence solely because of the presence of marijuana metabolites or components that appear in “…insufficient concentration to cause impairment.” If an employer would be disqualified from a monetary or licensing-related benefit due to obligations under federal laws or regulations due to compliance with the medical marijuana program, they are not required to comply.
Testing authorized with advance written notice to applicant, after conditional offer of employment has been made, and if test is part of pre-employment physical.
CANNABIS:
Employers can prohibit recreational marijuana use anytime but can only restrict medical marijuana use. during work hours.
See blog: https://fadv.com/blog/virginia-medical-and-recreational-cannabis-drug-testing-impacts-april-2021