By Katherine Miller, CAPM, Senior Director of Compliance Services
2023: What a Year!
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
As 2023 comes to an end, it’s time to take stock of what has occurred throughout the year. It has been an eventful year, with many changes in the world of workplace drug and alcohol testing. This article will give a brief overview of major changes that occurred in 2023.
Delaware Legalizes Recreational Cannabis
April 2023 saw the legalization of recreational cannabis in Delaware via the passage of two bills, HB 1 and HB 2. HB 1 legalizes recreational cannabis for adults aged 21 and older and makes no mention of employers or the workplace.
HB 2 creates a regulatory framework for the production, manufacture, and sale of cannabis, though some details were left to the legislature to determine. HB 2 mentions the workplace, stating that it is not intended to impact/impose any requirements or restrictions on employers regarding terms or conditions of employment. This includes, but is not limited to, workplace accommodations, policies, or discipline. Additionally, an employer who occupies, owns, or controls a property can prohibit or regulate the possession, consumption, use, transfer, distribution, sale, transportation, or growth of cannabis on the property.
Personal use cannabis is permitted in Delaware as of April 2023, and a regulatory sales framework has yet to be enacted.
DOT Issues Final Oral Fluid Rule
In May the Department of Transportation (DOT) issued their final rule adding lab-based oral fluid as an approved test specimen. The rule was effective as of June; however, oral fluid will not be available for use for DOT positions until such a time as the Department of Health and Human Services (HHS) certifies two laboratories for oral fluid testing. Once this occurs, DOT and federal employers will have the opportunity to choose between urine and oral fluid for their testing needs.
The final rule provides extremely detailed guidance for employers, including collection information, device requirements, collector requirements, collection site requirements, a walkthrough of the collection process, cutoff levels, laboratory information, Medical Review Office (MRO) information, Substance Abuse Professional (SAP) information, and more.
Kentucky Legalizes Medical Cannabis
March brought about the legalization of medical cannabis in Kentucky via Senate Bill 47 (SB 47). Medical cannabis will be available for those with a wide variety of medical conditions and is set to launch by January 2025.
Kentucky employers are not required to permit or accommodate medical cannabis in the workplace. Additionally, employers can implement policies restricting the use of medical cannabis, prohibiting or restricting the use of equipment by a medical cannabis patient (broadly), prohibit the use of cannabis by employees, and establish/enforce a drug testing policy. However, a registered patient is not considered to be under the influence of medical cannabis solely because of the presence of tetrahydrocannabinol metabolites. The law includes numerous other provisions pertaining to cannabis and the workplace. Impacted employers should review the law in its entirety and update their policies prior to January 1, 2025.
Minnesota Legalizes Recreational Cannabis
In May, Minnesota Governor Walz signed HF 100, legalizing recreational cannabis for adults 21 and older in the state. While HF 100 permits commercial cannabis sales, it does not include guidance for the regulatory market, meaning that the Office of Cannabis Management is tasked with drafting and approving rules for commercial sales prior to their projected launch in January 2025. HF 100 provided updated guidance pertaining to both medical cannabis as well as recreational cannabis and the workplace.
Generally, employers may not discriminate in hiring, termination, employment conditions, or penalize an individual based on their status as a medical cannabis patient, their status as a tribal medical cannabis patient, or a medical cannabis patient’s positive drug test for cannabis unless the individual used, possessed, transported, or was impaired by medical cannabis at work. Additionally, patients that are required to undergo drug testing as part of the state law may present their patient verification as part of their explanation for a positive test result.
Pertaining to recreational cannabis in the workplace, employers may not refuse to hire an applicant because they use cannabis, discipline or discharge an employee because they use cannabis, request/require an applicant to be tested for cannabis solely for the purpose of determining cannabis use, refuse to hire an applicant solely because they returned a positive cannabis test result, or require an applicant or employee to undergo cannabis testing on an arbitrary or capricious basis. Additionally, the law includes a list of what employers may continue to do.
HF 100 includes a number of positions for which the law does not apply, the full list of which can be found in the text of the law. Interestingly, HF 100 also separates cannabis testing from drug testing, and makes a number of updates to the general drug and alcohol testing law as well to indicate this split. Employers should carefully review the law in its entirety, review their policies, and make any updates prior to 2025 when the majority of the law becomes effective.
Ohio Legalizes Recreational Cannabis
The only state with cannabis on the November ballot, Ohio legalized cannabis for adults aged 21 and older via Issue 2. Because Issue 2 was a voter initiative, the legislature may choose to adjust, or, in rare cases, even repeal entirely the initiative down the road.
Issue 2 is effective as of December 7, 2023; however, distribution facilities will take up to 9 months beyond this date to become licensed. Ohio employers are not required to accommodate or permit the use, possession, or distribution of cannabis. Additionally, employers can refuse to hire, discharge, discipline, or take other adverse employment action against an individual because of their use, possession, or distribution of cannabis. Employers retain all rights pertaining to drug testing policies. Issue 2 contains other guidance for employers and should be reviewed in its entirety and policies updated prior to its implementation date.
SAMHSA Updates Mandatory Urine and Oral Fluid Guidelines
October brought about an announcement that the Substance Abuse and Mental Health Services Administration (SAMHSA) was updating both the Mandatory Urine (UrMG) and the Oral Fluid Mandatory Guidelines (OFMG). Each document received a number of updates, including information on how the annual drug testing panel is published, revisions to definitions, information on an authorized biomarker testing panel, updates to collection procedures, revisions to the Medical Review Officer (MRO) process, and more.
Updates to the OFMG are effective as of October 10, 2023. Updates to the UrMG will take effect on February 1, 2024.
Washington Limits Pre-Employment Testing for Cannabis
In May, Washington state passed Senate Bill 5123 (SB 5123), limiting employer rights pertaining to pre-employment testing for cannabis and actions they can take based on positive test results. Employers are required to comply by January 1, 2024.
SB 5123 prohibits employers from discriminating against applicants during the hiring process if the discrimination is based on an individual’s use of cannabis off-the-job and/or a required drug test that indicates the presence of “nonpsychoactive cannabis metabolites” in the hair, blood, urine, or bodily fluid.
Employers are still permitted to base initial hiring decisions on drug screens that don’t screen for nonpsychoactive cannabis metabolites, maintain a drug- and alcohol-free workplace, meet federal law or regulatory requirements, continue testing as normal for all situations outside of pre-employment, and test applicants for a spectrum of controlled substances, including cannabis (as long as the cannabis results cannot be provided to the employer and the tests adhere to the entirety of the law). See SB 5123 for a full list of positions for which the law does not apply.
More Changes Are Coming in 2024
Already, multiple states have indicated that they will have cannabis on the ballot in 2024, and it’s likely that many states will introduce cannabis-related legislation. We will likely see even more changes in 2024, and not all of them may be favorable to employers.
Employers across the country should stay vigilant, keeping abreast of progressing legislation in their state(s) as well as issues that may be voted on at the polls. Employers impacted by the 2023 changes should carefully review their drug-free workplace policies and update them where needed.
Need help reviewing and updating your policy? Get in touch with our policy experts at policy@currentconsultinggroup.com
