The latest Gallup poll shows that 68% of Americans support cannabis legalization. Further, the rate of positive cannabis test results has jumped in the last decade. And according to recent news reports, some large employers have stopped testing job applicants for cannabis. As a result, other employers may be pondering whether to change their approach to an increasingly popular drug that is legal for medicinal or recreational use in most states. However, the decision may not be so easy. Here, we outline a variety of issues that might aid relevant stakeholders in weighing the practical and legal risks before making this important decision.

States have been passing medical and recreational cannabis laws at an increasing pace. Years ago, when states first stepped foot in this arena, the laws and some courts interpreting them allowed employers wide latitude in enforcing their drug-free workplace policies, such as in California and Colorado. But then courts in Connecticut and Massachusetts, for instance, issued game-changing decisions, holding either that the federal Controlled Substances Act (CSA) and state law do not conflict because the CSA does not prohibit employment of illegal drug users or that employers may have a duty to accommodate medical cannabis users under a state disability discrimination law. Since then, more states have been enacting new laws and courts are issuing new decisions that arguably make it more difficult for employers to enforce their drug-free workplace policies, especially if they have a large geographic footprint. Indeed, as we reported here, in 2021 alone, a few states passed cannabis laws with clear employment protections not yet seen in prior laws, most notably in New Jersey and New York.

Employers are now asking whether they should forego cannabis tests altogether. Here are some issues for employers and their stakeholders to consider:

Conclusion

This rapidly evolving legal landscape presents new challenges for employers, especially multi-state employers. Employers must balance several competing issues, including complying with conflicting federal, state, and local laws, maintaining a safe work environment, protecting applicants’ and employees’ privacy and other legal rights, and attracting and retaining quality talent. Employers considering discontinuing cannabis testing should work with experienced counsel to discuss and weigh the various considerations discussed above. Employers also should review their workplace drug testing policies to be sure they comply with existing and soon to be effective state and local laws.

Source: Seyfarth Shaw LLP – Jennifer L. Mora

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