Drug Policies: To Update or Not to Update?

Marijuana legalization and the opioid epidemic have led many employers in recent months to question whether their drug policies need to be updated. Common questions include, “Must we exclude marijuana from the battery of substances for which we test?” and “How do we address the opioid epidemic, if at all, through our policies?” Not to mention, “If someone has a medical marijuana card, are they exempted from our policies?”

In the case of marijuana, most states that have legalized recreational or medical marijuana continue to allow employers to test for these substances and exclude users from employment under established drug-free workplace policies. This is the case in states like Colorado and California, where there is no right to workplace accommodations regarding marijuana use, either for medical or recreational users.

However, other states, such as Arizona, bestow certain employment rights (and maintain employer prohibitions on discipline) for medical marijuana use. Sometimes, employers in all states experience even more complexity when they are faced with Drug-Free Workplace Act and Department of Transportation requirements on drug testing and discipline. Whether your policy must be updated depends on the state and local laws in effect for the places in which you do business, making marijuana and drug testing another cog in the increasingly complex wheel of multi-state employment law issues (along with those on which we recently reported here). There is no one-size-fits-all answer: employers who do business in multiple states and exclude individuals from employment for marijuana use should consult with legal counsel to ensure compliance.

In the case of opioids, the Equal Employment Opportunity Commission (EEOC) has been an active litigant on behalf of plaintiffs who were excluded from employment, or otherwise faced adverse action, for prescription drug use. However, prescription drug use presumes a legal prescription and use of the prescribed drug in compliance with the terms of such prescription. In other words, use of opioids and other controlled substances listed in the Controlled Substances Act may have to be accommodated when such substances are legally prescribed and legally used. However, illegal use may still be a basis on which employers may take adverse action, and such substances may still be included in workplace drug tests.

Employers Council attorneys regularly assist members with customized drug and alcohol testing policies and consult on practices related to such testing. For a state-by-state analysis of your policy, and whether it needs to be updated, contact your staff representative.