employment drug screening; marijuana; recreational; medicinal

Drug Tests and Criminal Checks May Soon Need To Change

In November 2016, residents of the state of Maine voted to approve IB 2015, c.5, “Question 1 – An Act to Legalize Marijuana.” The bill legalized recreational use of marijuana for resident adults 21 and older, but did not set out details and rules for retail sales and taxation of the drug, which remains illegal under federal law.

On February 1, 2018, parts of the law went into effect, including the portion that requires employers in Maine to stop testing candidates for marijuana and to prevent them from firing adult workers who use marijuana outside of the workplace on off hours.

The portion of Question 1 dealing with discrimination reads: A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.

In preparation of the law’s effective date, the Maine Department of Labor removed marijuana from the list of drugs for which employers can legally test applicants and current employees from its “model” applicant drug-testing policy. However, the law does not affect compliance with jobs requiring federal drug testing, such as commercial driving jobs with the U.S. Department of Transportation (DOT).

However, Question 1 does not allow workers to use marijuana on the job, or in the course of carrying out any duties on behalf of the employer. Employers are free to enact and enforce workplace policies that prohibit the use of marijuana at work or to discipline workers found to be using marijuana in any form during the performance of their jobs.

Seven other states, California, Alaska, Colorado, Massachusetts, Nevada, Oregon, and Washington State, also have recreational marijuana laws on the books, but none of them specifically prohibit employers from screening job candidates for marijuana at this time. In fact, as we saw in Coats vs. Dish Network, an applicant legally using marijuana to treat a medical condition was fired for testing positive on a random drug screen. Interestingly, in the District of Columbia employers are barred from requesting a drug screen until after an offer of employment has been made, but that screen can still include a test for THC, the psychoactive ingredient in marijuana.

Courts continually side with employers who want to continue testing in states with legal marijuana, citing the federal law that keeps marijuana classified as a Schedule I drug with “no medicinal purpose and a high probability of addiction.”

We at The Cedalius Group, the employment background screening provider you can trust, are well aware of the ever-shifting landscape of drug testing in the United States, and we are diligently tracking the trends in employment drug screening as states approve legislation for both medical and recreational marijuana use. We offer a full suite of drug testing solutions, which can reduce your drug screening costs, provide automation of program compliance, and offer you the results of negative drug screens within 15 minutes. Please call us today at 404.963.9772 or visit us online at www.thecedaliusgroup.com for more information.

The Cedalius Group offers insight into the background screening industry for educational purposes.  We always recommend you consult with your legal counsel to determine practices that best suit your business needs.