Under what circumstances can we test job applicants for marijuana use?
Quick Answer
Regardless of state laws, employers in safety-sensitive and security-sensitive industries, as well as federal contractors and grantees, are subject to drug-testing requirements.
Legal Perspective
Foley & Lardner LLP
Chicago, Illinois
Most states still allow employers to test for cannabis use as long as the employer complies with any general, non-cannabis specific drug testing laws, says employment attorney Patrick McMahon of the firm Foley & Lardner LLP.
However, a growing number of states are enacting laws that restrict employer testing for cannabis. There are some exceptions for the testing bans. For example, these laws generally do not apply to safety-sensitive positions. The exact definition of safety-sensitive positions varies across states, but representative positions include:
- operators of heavy machinery
- medical professionals
- pilots, and
- employees handling hazardous materials.
Employers may still test to comply with obligations under federal statutes, federal regulations, or federal contracts or funding agreements. For example, these state and local laws do not prevent employers from performing federally mandated U.S. Department of Transportation testing.
Many states also permit post-accident and reasonable suspicion testing.
Importantly, these laws do not require employers to allow cannabis use, possession, distribution or cultivation in the workplace. Nor do employees have a free pass to come to work high. Employees who do not fall into one of the exceptions can use cannabis outside of work as long as they are not impaired at work — and employers can test for cannabis use and discipline employees who appear to be impaired at work.
Ultimately, this is a rapidly evolving area of law, and new or amended legislation is likely to be enacted over the next few years. For that reason, employers should monitor changes in their state and local laws – and then update their workplace policies and procedures accordingly.
Relevant Case Law
Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries
Pilkington Barnes Hind v. Superior Court (Visbal)
HR Insight
Georgetown County Water and Sewer District
Pawleys Island, South Carolina
Our state does not allow medical or recreational marijuana use, and we have a zero-tolerance drug policy, says HR Manager Dorothy Small.
Once an offer of employment has been made and accepted, all of our applicants are drug tested.
Farwest Corrosion Control Company
Downey, California
If a position falls under DOT regulations, we test applicants for marijuana, says HR Manager Barbara Booth. If the position is not DOT-regulated, we do not.
All applicants are cautioned that they are subject to reasonable suspicion testing if they appear to be under the influence of any substance.
Vaxcel International Co. Ltd.
Carol Stream, Illinois
HR Manager Kim Schrader says: Any position that is deemed as a “safety-sensitive position” or that requires certain licenses should undergo drug testing before starting in the position, especially a federal position. Under federal law, marijuana is still illegal.
Key Takeaways
- Most private employers are not required to have a drug-free workplace policy.
- Federal grantees and many federal contractors must have drug-free workplace policies.
- Federal employees holding certain positions, including those involving law enforcement and national security, must drug testing.
- Federal law requires drug testing of safety-sensitive employees in transportation industries.
- State laws may require testing of other law enforcement personnel and emergency responders.
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