March 2, 2021

Volume XI, Number 61


March 01, 2021

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Drug Testing Legislation in 2020: A Look Back

We would all be excused for wanting 2020 to disappear in a fog of medical marijuana. In case you missed it, here’s a recap of a very busy year for Ogletree Deakins Drug Testing Practice Group.

As we predicted in 2019, most of this year’s action concerned medical and recreational marijuana. Not to be missed, however, there were important developments regarding accommodation of opiate addiction, pandemic-related drug testing guidance by the U.S. Department of Transportation (DOT), and even decriminalization of narcotics and psychedelic drugs. Here is a rundown of the highlights from 2020.

  • Not content to merely decriminalize marijuana, Oregon decriminalized narcotics and psilocybin.

  • Pennsylvania’s Medical Marijuana Act provides for a private right of action but, for now, the Pennsylvania Human Relations Act does not mandate accommodation of medical marijuana.

  • The November election saw five states (Arizona, Montana, New Jersey, South Dakota and Mississippi) legalize medical and/or recreational marijuana. When South Dakota and Mississippi join the party, you know there’s no stopping things!

  • As if the state-by-state nature of drug testing law isn’t complicated enough, in November 2020, Madison, Wisconsin joined the party and decriminalized small amounts of cannabis.

  • The U.S. Equal Employment Opportunity Commission issued a helpful guidance on opioid addiction and the Americans with Disabilities Act.

  • Louisiana’s medical marijuana law took effect in August 2020—laissez les bon temps rouler.

  • In a rare moment of clarity for employers, the Rhode Island Supreme Court clarified when an employer has reasonable grounds to conduct a drug test.

  • Since COVID-19’s impact knows no bounds, in March 2020, the DOT published guidance on administration of drug and alcohol testing during the pandemic. However, consistent with all things 2020, the guidance provided little in the way of practical solutions.

  • The DOT did, however, issue a helpful guidance on cannabidiol (CBD) use in safety-sensitive jobs.

LOOKING AHEAD:  The United States has long been criticized for not offering paid leave at the federal level.  With the first crack in the wall being the FFCRA, there is speculation that the Biden Administration will push for legislation that would make permanent federal paid leaves of absence.  It is too early to guess at whether or when that leave will come, or what employers would be covered.  Nevertheless, the March 31 date could now serve as a deadline for yet another extension of paid leave related to COVID.  Alternatively, going forward the FFCRA may have created a blueprint by which covered employers will front paid leave and then recover the funds on the back end from the federal government.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 363



About this Author

Michael Clarkson, Ogletree Deakins, personnel policy attorney, drug testing issues lawyer

Mr. Clarkson is licensed to practice in Massachusetts and regularly appears in state and federal courts and before administrative agencies across the country.  In his work with Ogletree Deakins, Mr. Clarkson litigates cases and counsels large and small private for-profit and not-for-profit employers concerning discrimination, harassment, retaliation, non-compete, wage and hour, employment contract, personnel policy and drug testing issues.  Mr. Clarkson is Chair of the Ogletree Deakins’ Drug Testing Practice Group and has particular expertise in drafting drug testing...