Drug and Alcohol Testing Policy Check-Up – Are You Ready for 2020?

2020 is on the horizon, and employers must be ready to comply with many new developments in the world of workplace drug and alcohol testing. Here is a summary of significant laws that will take effect in 2020 (and some that have already taken effect):

Illinois Recreational Marijuana Law – The Cannabis Regulation and Tax Act will go into effect on January 1, 2020. The Act will allow anyone over the age of 21 to possess, use, or buy marijuana. More significantly, marijuana will be considered a “lawful product” for purposes of the Illinois Right to Privacy Act, which bars discrimination against employees and applicants for using lawful products off-duty and off of the employer’s premises.

Although marijuana will be considered a “lawful product,” the Act expressly permits employers to conduct “reasonable suspicion” and post-accident drug testing for marijuana, in accordance with the requirements of the Act. Specifically, an employer may consider an employee to be impaired or under the influence of cannabis if the employer has a good faith belief that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery; disregard for the safety of the employee or other, or involvement in any accident that results in serious damage to equipment or property; disruption of a production or manufacturing process; or carelessness that results in any injury to the employee or others. If an employer elects to discipline any employee on the basis that the employee is under the influence or impaired by cannabis, the employer must afford the employee a reasonable opportunity to contest the basis of the determination.

While it initially appeared that the Act did not authorize pre-employment marijuana testing or random marijuana testing, the Act was amended on December 4, 2019, to permit employers to drug test for marijuana on all of these tests and to take disciplinary action for positive marijuana test results.

Nevada Law Prohibiting Pre-Employment Marijuana Tests – Effective January 1, 2020, pre-employment drug testing for marijuana is illegal in the state of Nevada. The law does not apply to applicants who apply for positions as firefighters, emergency medical technicians, operators of motor vehicles who are required to submit to drug tests, or other positions that “in the determination of the employer, could adversely affect the safety of others.”

The law does not apply if it conflicts with the provisions of an employment contract or a collective bargaining agreement, or if it is inconsistent with provisions of federal law, and further does not apply to positions funded by a federal grant.

The law further provides that if an employer requires an employee to submit to a drug test within the first 30 days of employment, the employee shall have the right to submit to an additional drug test, at his or her own expense, to rebut the results of the initial test. The employer “shall accept and give appropriate consideration to the result of such a screening test.”

New York City Law Prohibiting Pre-Employment Marijuana Tests – Effective May 10, 2020, the New York City Human Rights Law will prohibit pre-employment marijuana drug tests. The law will not apply to applicants for certain types of jobs, including:

• Police officers or peace officers, or other jobs with law enforcement or investigative functions at the department of investigation;

• Positions requiring compliance with Section 3321 of the New York City Building Code or Section 220-h of the Labor Law (pertaining to certain types of construction and maintenance jobs);

• Any position requiring a commercial driver’s license;

• Any position requiring the supervision or care of children, medical patients or vulnerable persons as defined in Social Services Law Section 488(15) (certain individuals with physical and cognitive disabilities);

• Any position with the potential to significantly impact the health or safety of employees or members of the public, as determined by (i) the commissioner of citywide administrative services for the classified service of the city of New York, and identified on the website of the department of citywide administrative services or (ii) the chairperson, and identified in regulations promulgated by the commission.

The law specifically does not apply drug testing required by:

• Any regulations promulgated by the U.S. Department of Transportation that require pre-employment drug testing, as well as any state or city regulations that adopt the DOT rules;

• Any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of prospective employees as a condition of receiving the contract or grant;

• Any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security; or

• Any applicants whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses the pre-employment drug testing of such applicants.

New Jersey Law Requires Written Notice To Individuals Who Test Positive For Marijuana – In New Jersey, the medical marijuana law was amended in July 2019 to prohibit employment discrimination against medical marijuana users. It is still permissible for New Jersey employers to prohibit marijuana use during work time and on Company premises. However, the law now requires employers to provide written notice to all applicants and employees who test positive for marijuana. The written notice must give the applicant or employee an opportunity to provide a “legitimate medical explanation for the positive test result.” Thereafter, within three working days after the employee or applicant receives the written notice, the employee or applicant may either provide a legitimate medical reason for the positive test result, or may request retesting of the original specimen at the employee or applicant’s expense. The legitimate medical reason may include authorization for medical marijuana use by a health care provider, proof of registration for medical marijuana use, or both.

Oklahoma’s Medical Marijuana Law Was Amended – Oklahoma’s medical marijuana law was amended in August 2019 to clarify certain regulatory aspects of the state’s existing medical marijuana law. Under Oklahoma law, employers cannot refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of the applicant’s or employee’s status as a medical marijuana licensee. Moreover, an employer may not refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive drug test result for marijuana, unless: (1) the applicant or employee is not in possession of a valid medical marijuana license; (2) the licensee possesses, consumes or is under the influence of medical marijuana or medical marijuana product while at the place of employment or during the fulfillment of employment obligations [the law does not define “under the influence”]; or, (3) the position is one involving safety-sensitive job duties. “Safety-sensitive” is defined to mean any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others including, but not limited to, any of the following:

• The handling, packaging, processing, storage, disposal or transport of hazardous materials;

• The operation of a motor vehicle, other vehicle, equipment, machinery or power tools;

• Repairing, maintaining or monitoring the performance or operation of any equipment, machinery or manufacturing process, the malfunction or disruption of which could result in injury or property damage;

• Performing firefighting duties;

• The operation, maintenance or oversight of critical services and infrastructure including, but not limited to, electric, gas, and water utilities, power generation or distribution;

• The extraction, compression, processing, manufacturing, handling, packaging, storage, disposal, treatment or transport of potentially volatile, flammable, combustible materials, elements, chemicals or any other highly regulated component;

• Dispensing pharmaceuticals;

• Carrying a firearm; or,

• Direct patient care or direct child care.

FMCSA Clearinghouse – The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration’s Clearinghouse will become operational on January 6, 2020. Beginning on January 6, 2020, FMCSA-covered employers must use the Clearinghouse to report commercial motor vehicle drivers’ drug and alcohol program violations (identified in the final rule). They must also query the Clearinghouse for new hires upon hire and annually for current employees. Employers are required to revise their drug and alcohol testing policies to list the drug and alcohol violations that will be reported to the Clearinghouse.

Oral Fluid Testing Finally Approved by DHHS – After a long wait, the U.S. Department of Health and Human Services issued its Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid on October 25, 2019. The Guidelines establish standards for oral fluid drug testing for federal employees and will take effect on January 1, 2020. Because DOT is required to follow the Mandatory Guidelines in developing drug testing programs, we expect all of the DOT operating agencies to implement their own regulations adopting the oral fluid testing Guidelines sometime in 2020. Many employers will welcome oral fluid drug testing, as it is quicker than urine testing, offers less opportunity for adulterating or substituting specimens, and may provide more insight into recent drug use.