Drug & Alcohol Testing Policies Change in 2020: Is Your Construction Business Ready?

On Jan. 1, 2020 several states began to allow recreational use of marijuana, calling into question the effects of legalization on employer drug policies. Make sure you're ready.

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On Jan. 1, 2020, several states began to allow recreational use of marijuana, calling into question the effects of legalization on employer drug policies. Although none of the state-specific laws affect federal drug testing policies for CDL holders, they may affect companies' zero-tolerance policies.

New legislation in Illinois prohibits employers from refusing to hire or discharge any individual who uses lawful products off the premises during nonworking hours. Nevada has similar legislation banning employers from refusing to hire an applicant for failing a pre-employment drug test for marijuana. In some states where recreational marijuana is legal, employers can still take action; however, impairment can't necessarily be determined by a drug test.

Employers need to review their state-specific recreational and medicinal marijuana laws and develop appropriate workplace impairment and drug testing policies. Here's a brief overview of the new legislation that construction contractors need to be aware of:

FMCSA Clearinghouse Begins Jan 6:

Commercial driver's license (CDL) holders and their employers are required to register with the Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Clearinghouse beginning Jan. 6, 2020. This means all FMCSA-covered employers must use the Clearinghouse to report commercial motor vehicle drivers’ drug and alcohol program violations (identified in the final rule). They must also query the Clearinghouse for new hires upon hire and annually for current employees. Employers are required to revise their drug and alcohol testing policies to list the drug and alcohol violations that will be reported to the Clearinghouse. 

While this rule does not change any existing requirements under DOT workplace drug and alcohol testing requirements, the program streamlines access to information. The clearinghouse is a secure online database that will give employers, FMCSA, state driver licensing agencies and state law enforcement personnel real-time information about CDL and commercial learner's permit holders' drug and alcohol program violations.

Illinois Recreational Marijuana Law:

The Cannabis Regulation and Tax Act went into effect on January 1, 2020. The Act allows anyone over the age of 21 to possess, use or buy marijuana. More significantly, marijuana will be considered a “lawful product” for purposes of the Illinois Right to Privacy Act, which bars discrimination against employees and applicants for using lawful products off-duty and off of the employer’s premises.         

According to the Jackson Lewis law firm, even though marijuana will be considered a “lawful product,” the Act expressly permits employers to conduct “reasonable suspicion” and post-accident drug testing for marijuana, in accordance with the requirements of the Act. The Act says: 

An employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or other, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others.

If an employer elects to discipline any employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

Nevada Law Prohibiting Pre-Employment Marijuana Tests:

Effective January 1, 2020, pre-employment drug testing for marijuana is illegal in the state of Nevada. The law does not apply to applicants who apply for positions as firefighters, emergency medical technicians, operators of motor vehicles who are required to submit to drug tests, or other positions that “in the determination of the employer, could adversely affect the safety of others.”

The law does not apply if it conflicts with the provisions of an employment contract or a collective bargaining agreement, or if it is inconsistent with provisions of federal law, and further does not apply to positions funded by a federal grant.

The law further provides that if an employer requires an employee to submit to a drug test within the first 30 days of employment, the employee shall have the right to submit to an additional drug test, at his or her own expense, to rebut the results of the initial test. The employer “shall accept and give appropriate consideration to the result of such a screening test.”

New York City Law Prohibiting Pre-Employment Marijuana Tests:

Effective May 10, 2020, the New York City Human Rights Law will prohibit pre-employment marijuana drug tests. The law will not apply to applicants for certain types of jobs. The law specifically does not apply drug testing required by:

  • Any regulations promulgated by the U.S. Department of Transportation that require pre-employment drug testing, as well as any state or city regulations that adopt the DOT rules;
  • Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;
  • Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or
  • Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

New Jersey Law Requires Written Notice To Individuals Who Test Positive For Marijuana:

In New Jersey, the medical marijuana law was amended in July 2019 to prohibit employment discrimination against medical marijuana users. It is still permissible for New Jersey employers to prohibit marijuana use during work time and on Company premises. However, the law now requires employers to provide written notice to all applicants and employees who test positive for marijuana. The written notice must give the applicant or employee an opportunity to provide a “legitimate medical explanation for the positive test result.” Thereafter, within three working days after the employee or applicant receives the written notice, the employee or applicant may either provide a legitimate medical reason for the positive test result, or may request retesting of the original specimen at the employee or applicant’s expense. The legitimate medical reason may include authorization for medical marijuana use by a health care provider, proof of registration for medical marijuana use, or both.

Oklahoma’s Medical Marijuana Law Was Amended:

Oklahoma’s medical marijuana law was amended in August 2019 to clarify certain regulatory aspects of the state’s existing medical marijuana law. Under Oklahoma law, employers cannot refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of the applicant’s or employee’s status as a medical marijuana licensee. Moreover, an employer may not refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive drug test result for marijuana, unless:

  1. the applicant or employee is not in possession of a valid medical marijuana license;
  2. the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations [the law does not define “under the influence”]; or,
  3. the position is one involving safety-sensitive job duties.

“Safety-sensitive” is defined to mean any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others.