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There are many reasons for employers to promote and enforce a drug-free workplace policy and to engage in drug testing of employees. Some employers are mandated by law to have drug testing programs. Many employers choose to drug test employees because of safety-sensitive positions, reductions in rates for workers’ compensation insurance or the employers simply want to ensure that their employees are not impaired.

The typical focus of an employer’s drug-free policy is illegal drugs, so how do employers deal with both the legalization of formerly illegal drugs, like marijuana, and the abuse of legal drugs, like opioids and alcohol? State law, federal law and decisions interpreting those laws have created a patchwork of regulations that is beginning to upend the traditional assumptions about drugs in the workplace.

Marijuana: Is It Legal or Illegal?

Many states have legalized the medical use of marijuana, some states have legalized the recreational use of marijuana, and some states have decriminalized the use of marijuana.

Under federal law, possession of any amount of marijuana remains a crime. Recently, Attorney General Jeff Sessions released a memorandum that directed all U.S. Attorneys to enforce the Controlled Substances Act, which prohibits the cultivation, distribution, and possession of marijuana. In deciding which marijuana-related activities to prosecute, the Attorney General directed prosecutors to follow the principles established by the U.S. Attorneys’ Manual and to weigh all relevant considerations, including federal law enforcement priorities set by the Attorney General, the seriousness of the crime, the deterrent effect of criminal prosecution, and the cumulative impact of particular crimes on the community. The memorandum also rescinded Obama administration guidance that took a laissez-faire stance on the enforcement of federal marijuana laws in states that have legalized either medical or recreational use.

The term “medical marijuana” refers to use of cannabinoid drugs for its therapeutic effects, including pain relief, control of nausea and vomiting, appetite stimulation, anxiety reduction, and sedation, as well as the treatment of spasticity, glaucoma, and movement disorders. Twenty-two states now allow for use of medical marijuana, 13 states allow for the limited use of cannabis oil, and seven more states are considering passage of such laws. In states that allow access to medical marijuana, users are generally required to register with the state and obtain a medical marijuana identification card.

For recreational use of marijuana, defined in many states as use by adults 21 and older, eight states—Alaska, California, Oregon, Nevada, Washington, Colorado, Maine, and Massachusetts—and Washington, D.C. have legalized the recreational use of marijuana.

While still part of the marijuana-law trend, but perhaps less important to employers, many states and municipalities have decriminalized to some extent or another the possession of small amounts of marijuana—either making it a civil infraction or a minor misdemeanor.

Notably, many of the new legalization statutes do not necessarily require employers to accommodate medical marijuana use, and most states allow employers to take adverse action against an employee for failing or refusing to take a drug test. Many of these state marijuana laws have express carve-outs that allow employers to prohibit use on the premises and on-the-job intoxication. Court decisions in some jurisdictions now expressly support an employer’s right to terminate employees for positive drug-test results, despite legalization statutes. Accordingly, in most jurisdictions, an employer is still able to establish policies prohibiting marijuana use and intoxication and to drug test employees in accordance with that policy.

Some state statutes and court decisions take the opposite approach—holding that an employer cannot discriminate against an employee simply for being a medical marijuana user.  Further, because most medical marijuana laws are relatively new, not all states have had the opportunity for judicial interpretation of marijuana laws, particularly in the employment context, so the law in this area is constantly evolving. The trend in claims against employers for medical marijuana use is the claim that the employer failed to accommodate a related disability when the employer took action based on drug-testing results or disclosure of use. In light of this trend, employers should evaluate whether any drug testing program or drug policy is job related and to carefully consider the job-related reason for taking an adverse action that involves the use of medical marijuana.

Can I Test for Opioids?

Opioids present a unique challenge for employers with drug-free workplace policies. Opioid abuse has reached alarming levels in American society.  Opioid abusers threaten safety in employment, and in most jurisdictions and circumstances, employers can test for use of such drugs. Some employees, however, may have legitimate, medically authorized reasons for taking opioids. Employers should beware that terminating employees for positive test results under such circumstances could result in challenges to drug-testing policies and significant exposure. In May 2017, a Washington federal district court judge ordered an employer to pay over $1.8 million in damages to a terminated employee who tested positive for opioids after being prescribed medication for migraines. Given such risks, an employer might want to tailor its drug-testing policies to avoid drastic measures such as immediate termination of an employee when an employer learns of positive test results for opioids. Where necessary, employers should provide reasonable accommodations to employees taking prescribed medications and to consider the job-related reasons for any adverse action against the employee.

Shouldn’t I Include My Ban on Alcohol? Can I Test for Alcohol?

While the Americans with Disabilities Act prohibits pre-offer inquiries about medical conditions such as alcoholism, an employer who has extended a job offer to a potential employee can test for alcohol. However, if an employer decides to conduct alcohol testing as a condition of employment post-offer, the employer should test all individuals who receive job offers in the same or similar job category. Employers might also want to consider alcohol testing on current employees if the testing is “job-related and consistent with business necessity,” as required under the ADA. Testing for alcohol intoxication for the safety and protection of employees is one such example. Employers may want to test employees to enforce rules prohibiting employees from being intoxicated on the job or following a workplace accident. In all cases, employers should ensure that policies addressing alcohol testing are included in employee handbooks and other personnel policies in order to protect themselves from legal risks or claims of discrimination based on alcohol testing.

Is Off-the-Job Use of Drugs an Acceptable Excuse?

Depending on the state, off-the-job use of marijuana might be protected. This year, Maine became the first jurisdiction to protect employees from adverse employment actions based on their off-the-job use of marijuana. A provision of Maine’s recreational marijuana law restricts employers from taking adverse employment actions for use of marijuana outside of work. While Maine is the only state so far to provide such protections to employees, this legislation could represent an emerging trend. For example, a Wisconsin state representative recently introduced a bill that would also forbid drug testing for marijuana for most jobs. These examples represent a shift from states’ previous positions of allowing private employers to continue to test for marijuana despite legalization at the state level.

Denying an applicant employment for a positive drug screen also raises concerns about the potential exposure to liability for an employer under state laws with carve-outs for medical marijuana use. The Maine law prevents employers from denying employment to an applicant who has tested positive for marijuana. In other states, employers may face liability for discrimination for denying employment based on marijuana use. In a recent federal court case in Connecticut, a prospective employee who was diagnosed with posttraumatic stress disorder and who was a qualifying patient under Connecticut’s Palliative Use of Marijuana Act brought an employment discrimination action against a prospective employer alleging denial of employment based on a positive cannabis result during a pre-employment screening test. The court concluded that federal law prohibiting marijuana possession and use did not preclude enforcement of PUMA, which restricted employers from firing or refusing to hire a medical marijuana user.

Similarly, employers can expose themselves to liability for refusing to hire an applicant just because he or she has a medical marijuana identification card. A Rhode Island superior court found that an employer violated a state antidiscrimination law when it refused to hire an intern because she had a medical marijuana card. Such cases demonstrate an employer’s need to carefully walk the line between ensuring a safe and drug-free workplace and unlawfully discriminating against employees and applicants in violation of various state laws.

Can I Test for Drugs After an Accident?

Many employers have a standard policy of testing for drug use after an employee is involved in an accident or suffers an injury. The Occupational Safety and Health Administration recently waded into the area of drug testing by opining that “blanket post-injury drug testing policies deter proper reporting” of workplace injuries under OSHA’s recordkeeping standard that prohibits reporting procedures that would “deter or discourage a reasonable employee from accurately reporting a workplace injury.”  OSHA contends that “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

What If I Decide Not to Test for Drugs?

Employers who choose not to conduct drug testing may also be liable for negligent hiring or negligent retention if they knew or should have known that an employee had a propensity to injure other members of the workforce or the public at large. Under the theory of respondeat superior, an employer can be liable for an injury that would not have occurred if the employer had not put the employee in a position where they were able to cause the injury. Such concerns are especially salient for employers in the manufacturing, healthcare, or transportation industries, where even minor miscalculations can lead to disastrous accidents.

Given the high stakes and maze of state and local legislation regarding drugs and drug testing, employers should work closely with counsel to craft drug-testing policies that comply with state and local laws. Employers should consider state law before implementing pre-employment drug testing or random drug testing in their policies. Employers will need to consider what substances to test for, including alcohol and marijuana in states that have legalized some form of use of the drug. Finally, employers will need to be wary of inconsistent administration of drug tests since failure to test in a uniform manner could expose them to claims of discrimination.