What Drug Testing Legislation in 2021 Tells Us What to Expect in 2022

This is what we know about drug testing legislation at the state level in 2021: there was a lot of it. It was one of the most years in a long time and certainly than what was seen during the heavily COVID-interrupted years of 2020. In a nutshell, many new laws were passed, and several existing laws were updated. And from 2021’s legislative activity we gain some insights into what 2022 will likely bring.

Following is a brief recap of the legislative highlights of 2021. Where a new or revised law has a direct impact on the workplace it will be noted.

Cannabis Decriminalization or Expungement

Via HB 1090, Colorado eliminated the criminal offense of possession of two ounces or less of cannabis. The bill included provisions for sealing and expunging certain cannabis criminal convictions.

Rhode Island, with H 6083, reclassified simple possession of 10g or less of a controlled substance as a two-year misdemeanor rather than a felony.

CBD Oil Programs

Mississippi passed HB 119, which allows for the dispensing of, possession of, and use of CBD oil (Cannabidiol) for debilitating epileptic conditions or related illnesses.

Cannabis infused gummy bears. Medical CBD candies. Mixed colors. Marijuana leaf. Alternative medicine. Anxiety therapy.

Medical Cannabis

Alabama legalized medical cannabis via SB 46. Under the new law, employers are not required to permit or accommodate the use of medical cannabis or modify the working conditions of any job for a medical cannabis-using employee. Employers can prohibit medical cannabis use and can deny workers’ compensation benefits based on cannabis positive test results.

Colorado passed HB 1317, which amended the state’s existing medical cannabis program. The bill authorizes scientific research relating to the physical and mental health effects of high-potency THC cannabis and cannabis concentrates. Additionally, it requires an assessment of the mental health history of medical cannabis patients.

The District of Columbia passed B24-0184, which prohibits public employers from refusing to hire, terminating, penalizing, failing to promote, or taking adverse employment action against an individual based on their status as a qualifying medical cannabis patient. Generally, a patient’s failure to pass a drug test due to cannabis cannot be used as the basis for employment-related decisions unless reasonable suspicion exists that the qualifying patient was impaired at their place of employment or during work hours.

Montana passed HB 655, amending its existing medical cannabis law by deleting a provision that specifically permits employers to restrict medical cannabis use by employees. It also deletes a provision that prohibits a cause of action against employers for medical cannabis discrimination.

Additionally:

Montana employers cannot refuse to employ or discriminate against an individual because the individual legally uses a lawful product (including marijuana) off of the employer’s premises during non-working hours.
This does not apply if the use of a lawful product impacts an individual’s ability to perform job-related employment responsibilities, impacts the safety of other employees, or conflicts with an occupational qualification that is related to the individual’s employment.

New Hampshire amended its existing medical cannabis program via HB 89 and HB 605, adding more qualifying conditions.

Tennessee passed SB 0118, which created the Medical Cannabis Commission to study laws and legislation pertaining to the use of medical cannabis. The commission is also tasked with proposing legislation on how to “best establish an effective, patient-focused medical cannabis program.”

Recreational Cannabis

Connecticut legalized adult use cannabis via SB 1201. Employers can prohibit the use of cannabis during work hours and can discipline employees for being under the influence of cannabis during work hours. Employers cannot take adverse employment action against employees because they use cannabis outside of the workplace unless such action is made pursuant to a company policy.

Employers can take adverse employment action upon determining that an employee manifests specific, articulable symptoms of drug impairment while working or at the workplace. Employers are not limited in their ability to subject employees or applicants to drug testing, fitness-for-duty evaluations, or taking adverse action pursuant to an established policy.

Effective July 2022, applicant drug tests that yield positive results for 11-nor-9-carboxy-delta-tetrahydrocannbinaol cannot form the sole basis for an employer’s refusal to employ, to continue to employ, or penalization of an individual in most instances.

New Jersey legalized recreational cannabis via AB 21. Employers may not refuse to hire or employ any individual, discharge any individual, or take adverse action against an individual with respect to compensation, terms, conditions, or other privileges of employment because that individual does or does not use cannabis..

New Mexico legalized recreational cannabis via HB 2. Employers are not restricted in their ability to prohibit or take adverse employment action against an employee for impairment by, possession of, or use of intoxicating substances during work hours or at work. Employers can adopt and implement written zero-tolerance policies regarding the use of cannabis and cannabis products.

Drug Testing and Marijuana

New York legalized recreational cannabis via S 00854, and the Department of Labor (DOL) provided clarifying guidance for employers. Pertaining to drug testing policies, the DOL states:

If an employer has an existing drug-free workplace policy that prohibits marijuana use, the policy is no longer permitted (unless an exception applies), and the employer must update or amend their policy immediately.

Employers cannot test for marijuana simply because it is allowed and not prohibited under federal law.

This guidance only applies to workers employed within the state of New York. It covers both public and private employers in the state.

Hence, with few exceptions, New York employers cannot drug test applicants or employees for marijuana. Exceptions include:

If federal or state law requires drug testing for marijuana or makes it a mandatory requirement of a particular position. The DOL cites the following as examples:

Mandatory drug testing for drivers of commercial motor vehicles [and applicants for such a position] in accordance with 49 CFR Part 382 [or any other federal government-mandated drug testing],

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

When an employee’s actions [presumably while impaired on the job] would cause the employer to be in violation of federal law or the loss of a federal contract or federal funding.

Employers in the state can enact or enforce policies pertaining to cannabis in the workplace. Employers can prohibit the use of cannabis at the workplace or during work hours but cannot prohibit employees on leave from using cannabis or prohibit employees from using cannabis while off-duty and not at the worksite.

For an employer to act based on impairment at work, the employee must manifest specific articulable symptoms of impairment that decrease or lessen job performance [i.e., reasonable suspicion] or interfere with the employer’s obligation to provide a safe and healthy workplace [i.e., post-accident]. However, an employer cannot use a positive drug test result for marijuana as the basis for their determination that an employee was/is impaired by cannabis.

Miscellaneous

Arizona passed HB 2159 requiring drug and alcohol testing for school bus drivers.

Iowa passed HF 283 which creates the criminal offense of defrauding a drug or alcohol test.

Louisiana passed two bills, HB 221 and HB 637, that require applicants for the transfer, issuance, renewal, or upgrade of a commercial driver’s license to be checked in the Federal Motor Carrier Safety Administration’s (FMCSA) Drug and Alcohol Clearinghouse.

Mississippi passed SB 2569, which prohibits the sale of urine for purposes of defrauding chemical test.

New Hampshire, via SB 34, prohibited the manufacture, sale, distribution, marketing, or possession of synthetic urine or urine additives. Additionally prohibited are attempts to defeat a drug or alcohol test by using synthetic urine or urine additives.

New Jersey passed SB 3256, which reclassifies psilocybin possession as a “disorderly persons offense.”

What to Expect in 2022

As with other recent years, it is likely that recreational and medicinal cannabis will lead the way in terms of bills introduced and passed in 2022. Expect to see more bills that:

Legalize marijuana for medical and/or recreational use,

Expand the rights of marijuana users and specifically limit or prohibit any actions on the part of employers that could be considered discriminatory toward marijuana users, including adverse employment action based on a positive marijuana test without a provable connection to impairment on the job,

Clarification that marijuana laws do allow employers to prohibit marijuana use during work hours and employees from being at work while under the drug’s influence, and

More New York-style restrictions on pre- and post-hire testing for marijuana.

Hopefully, we will also see the release of the highly anticipated Department of Transportation (DOT) mandatory guidelines for oral fluid testing.

Employers should continue to monitor laws closely – a change in law in a state where you operate likely necessitates a full review of your company’s drug testing policy.

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