Comment on drug testing employees
April 6,  2022
Comment on drug testing employees from article on March 30, 2022
            Should Employers Continue Drug Tests for Marijuana?
            Unless your industry is mandated to comply with federal drug-testing rules that dictate the steps employers must take after an employee fails a drug test, I would advise eliminating pre-employment drug testing for Marijuana or updating your policies to stay compliant with state protections. Even though using Marijuana is still illegal under federal law, over 35 states allow it for at least medicinal purposes.
            Companies such as Amazon, Chipotle, Google, PetSmart, Apple, Sprouts and GAP have deleted this requirement to adjust to the changing landscape of Marijuana legalization. Amazon has even taken it a step further and has reinstated employment eligibility for former applicants and employees who were fired or deferred during random or pre-employment drug testing. Amazon employees whose jobs are regulated by the DOT will continue to be subject to drug testing.
            If you do test an employee or applicant for Marijuana, what do you do if you have an employee or applicant fails that drug test?
            First, you must remember that traces of Marijuana can be picked up in drug tests for up to 30 days after initial use. This is a huge consideration for pre-employment drug testing.  But like almost everything else, it depends on that state you are in. There are state-law differences regarding the steps employers must take when someone fails a drug test. A few examples:
            In Vermont and Minnesota, an employer cannot fire a current employee for the first failed drug test if the employee agrees to complete a rehabilitation program.
            New Jersey employers may not refuse to employ or otherwise discriminate against an employee who uses marijuana or based solely on a positive test result for marijuana metabolites. Which means that an employer can take action only if the employee is impaired by marijuana at work.
            With some exceptions, most Philadelphia employers are now prohibited from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment.
            You must also consider state notice requirements. As an employer, you may be required to communicate the positive results within a certain time and provide the applicant or employee with time to contest the results and to take a confirmatory retest.
            You also want to maintain consistency with how you've handled positive results in the past. Any deviation from your drug testing policy can create more problems for your company such as discrimination.  
Employers will also want to consider any obligations they have under the Americans with Disabilities Act or state disability laws.
            Bottom line is employers must, in states where medical marijuana is legal, go through an interactive process to see if there's a reasonable accommodation that can be made for the employee. It's going to be more complicated than just saying, ‘You failed; you're fired’.
            Re: employer’s liability when it comes to Cannabis.
            With the legalization and decriminalization of hemp in 2018 by the 2018 Farm Bill, we are seeing an explosion of CBD products in markets all across the U.S.  There is a lot of confusion and misinformation from people not understanding that hemp and marijuana are two different plants. Therefore, the products and medications made using compounds derived from each of these plants are also quite different.
            Hemp and marijuana are two different varieties of the cannabis sativa plant. Both naturally produce CBD, along with other cannabinoids. While hemp and marijuana look the same, the biggest difference is the level of THC. THC is the psychoactive compound that causes people to experience a “high” feeling.
Hemp has a nearly non-existence amount of THC, with levels averaging below 0.3%. However, marijuana plants contain a much higher amount of THC, which can be as high as 30%.
            Most pre-employment drug tests look for the presence of THC to determine whether a subject has used marijuana. Well, this is where it gets tricky, CBD products can result in a positive drug test if the product is tainted or contains more than the advertised amount of THC.  THC accumulates in the body and is detectable for up to 30 days, so with continued use, the consumption of even trace amounts over time may result in a positive drug test.
With a large portion of the population looking to CBD products as a natural alternative to prescription drugs, employers need to keep abreast of the ever changing laws and regulations surrounding Cannabis and Marijuana.
Sarah DeLuca
            Thanks for sharing your expertise.  When it comes to employees in security and fire alarm industry states with license, registration or certification requirements generally require a background check that the state performs once it gets the employee's fingerprints.  The state is checking for criminal convictions. 
            Employees are expected to be able to perform their tasks and be trustworthy, with or without the presence of drugs or other impairments.

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