CSG Law Alert: To Test or Not to Test, That is the Question

With the legalization of medical marijuana through New Jersey’s Compassionate Use of Medical Marijuana Act, and the decriminalization of recreational marijuana on the horizon, employers may want to revisit their drug screening policies and consider eliminating testing for marijuana for positions that are not safety-sensitive or subject to federal law mandating a drug-free workplace.

With the increasing number of authorized medical marijuana patients, and pending legislation that would render it illegal for an employer to take an adverse action against an authorized medical marijuana patient, eliminating or modifying marijuana screening may protect employers from inadvertently discriminating against an applicant or employee based on a disability.

Eliminating/modifying drug screens could also prevent employers from losing prime candidates for positions that are not safety-sensitive. In fact, some employers are concerned that they would be unable to maintain staff if they declined to hire all qualified candidates that tested positive for marijuana.  This is particularly true where unemployment rates are low and, according to a 2017 Marist Poll, 22% of Americans use marijuana.

While employers who do not test risk workplace safety concerns/liability for employees who show up to work impaired as well as decreased productivity, it should be noted that marijuana screens detect the presence of marijuana in the system and not present impairment.  Accordingly, it may be more practical to train people to recognize when an employee is impaired at work as opposed to relying on a drug screen.

Marijuana policies will vary greatly depending on the nature of service an employer provides.  Employers should consult with their attorneys to decide how to approach marijuana policies and ensure compliance with the changing legal landscape.

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Cannabis Law