Why Companies Should Consider a Ban on Pre- and Post-Employment Marijuana Drug Testing

Feb 22, 2019

Recently, New York law makers announced they are considering a ban on pre-employment tests for marijuana. Effectively, this would prevent employers from testing prospective employees for marijuana usage during the hiring process.

This is a step in the right direction, as the United States is poised for federal cannabis legalization. Businesses in states like New York stand to benefit from reconsidering these policies, as current tests for marijuana only show the presence of THC. The mere presence of THC does not prove impairment, as THC can stay in one’s system for days or even weeks. Additionally, firing someone for the presence of THC can be expensive to the employer.

Cities like Boulder, Colorado have taken a stand on post-employment drug testing, where employers are prohibited from requesting or requiring urine, blood or other bodily fluid tests for any drug or alcohol unless a set of specific conditions are met. Essentially, the employer must have reasonable suspicion based on clear and objective facts to believe that the employee is under the influence of a drug or alcohol on the job in order to require a test. Of course, there are exemptions for safety-sensitive and government employers like law enforcement, schools, and other government agencies.

Shifting a focus from the presence of THC to an employee’s impairment on the job will likely gain traction in the coming months and years as we move towards federal marijuana legalization in the U.S.

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This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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