Key Takeaways from the Supply Summit: Drug Testing in the Modern Workplace
By David James and Chelsea Bodin¹
It was great to see many of you at the Supply Summit in San Antonio. During our session, we discussed two unrelated but important topics: drug testing in the modern workplace and management best practices for avoiding litigation. We thought putting some of the key takeaways in writing would be helpful, both for attendees and those who could not be there. We address drug testing here and will touch on management best practices in a subsequent newsletter.
The state-by-state legalization of marijuana has created new complications for employers, but also an opportunity to take a fresh look at policies and practices in light of this clear societal trend. From a compliance perspective, each state’s particular law is critical. Many states have merely decriminalized marijuana (medical or recreational), but have not addressed the use of marijuana in the workplace. In those states, employers remain free to deny employment to an applicant who tests positive, or discipline or terminate a current employee based on a positive test.
In other states, marijuana statutes effectively create a new protected class, akin to race, sex, or disability. Statutes in Oklahoma and Connecticut, for example, prohibit discrimination against licensed medical marijuana users. In these states, courts have begun to find employers liable if the sole basis for termination is a positive drug test. Employers would need to find another basis to justify termination, such as possession on site or appearing for work under the influence.
Regardless of local law, employers increasingly are considering removing marijuana from their list of tested drugs or narrowing the scope of positions subject to testing. We generally hear two rationales for doing so. First, some employers seek to track the societal movement. Second, some employers find it difficult to hire and retain employees when testing for marijuana. The labor market can be tight, particularly in smaller communities.
We are often asked if an employer can take disciplinary action against an employee who appears under the influence without the benefit of a positive test. The answer is yes. In this scenario, it is important to document the visual or other evidence of impairment, such as slurred speech or alcohol on the breath. Marijuana laws do not prohibit an expectation that employees appear for work sober.
Marijuana legalization laws are gaining momentum, and it seems only a matter of time before marijuana use, at least for medical purposes, is legalized at the national level. In the meantime, a patchwork of state laws requires employers to pause and take stock of local requirements before terminating (or refusing to hire) for testing positive for marijuana. Many employers are also reconsidering the upsides of testing for marijuana, even in states where doing so is unrestricted.
¹ David James and Chelsea Bodin are attorneys in the labor and employment group at Nilan Johnson Lewis. FEMA members are entitled to 30 minutes of complimentary advice from David or Chelsea regarding labor and employment issues as an additional benefit of membership.