By Katherine Miller
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Already this year approximately 275 bills nationwide have been introduced/carried over that could potentially impact workplace drug and alcohol testing. This article will look at already established trends in legislation in 2020 and discuss what we may see as the legislative process progresses throughout the year.
Medical Marijuana Legalization
As of January 2020, more than 30 states, the District of Columbia, and Puerto Rico all permit medical marijuana use. Already this year 28 bills have been proposed that would legalize medical marijuana in states that don’t currently have programs. With some states proposing multiple bills, each with different specifics, it is likely that we will see at least one state legalize medical marijuana in 2020.
Georgia, Indiana, Iowa, Kansas, Kentucky, Nebraska, North Carolina, South Carolina, Tennessee, and Wisconsin have currently progressing medical marijuana legislation, although the legislative measures vary widely. Georgia’s proposed measure, for example, replaces the current low-THC oil patient registry with a full-blown medical marijuana program. If passed, employers would be prohibited from discriminating against medical marijuana users based on either their status as a cardholder or their positive drug test for marijuana metabolites unless the individual uses, possesses, or is impaired by medical marijuana in the workplace or during the hours of work.
Nebraska’s proposed measure simply would legalize medical marijuana and contains no provisions pertaining to the workplace. Tennessee has two proposed measures, both of which not only legalize medical marijuana, but also stipulate that employers retain all rights pertaining to the establishment of drug-free workplace policies, are not required to modify job conditions of medical marijuana using employees, and are not required to accommodate the use of medical marijuana in the workplace.
Recreational Marijuana Legalization
11 states and the District of Columbia currently have legal recreational marijuana, but with the 33 bills proposed so far in 2020 (in addition to several ballot initiatives that are likely to make it on to November 2020 ballots), it’s likely that we will see at least one more state with legal adult-use marijuana before the end of the year. Similar to the medical marijuana legislation that has been proposed, some states have several bills proposed, providing a variety of options for legislators.
So far, 13 states – Delaware, Hawaii, Iowa, Minnesota, Missouri, New Hampshire, New Jersey, New York, Oklahoma, Pennsylvania, Virginia, West Virginia, and Wisconsin – have proposed legislation that would legalize adult-use marijuana, and many of the proposed bills include provisions that would directly impact employers. Some bills, such as the four proposed in Oklahoma, include no provisions pertaining to the workplace, meaning that employers would retain all drug-free workplace rights that they currently have under the laws of the state.
Still others, such as the two bills currently progressing in Wisconsin, would greatly impact employers in addition to legalizing marijuana. Both Wisconsin bills stipulate that employers may not discriminate in any way against an individual on the basis of their use of lawful products when not at work (e.g. marijuana).
Adjustments to Existing Medical and/or Recreational Marijuana Programs
One of the most frequently proposed legislative measures so far in 2020 is amendments to existing medical and/or recreational marijuana programs. With over 25 progressing bills to date, it’s likely that we’ll see more proposed, and some pass prior to the end of the year. While the focus of the progressing bills varies widely from state-to-state, the majority of them either update regulatory procedures or expand medical marijuana access to include additional qualifying conditions.
Limits on Workplace Testing/Actions for Marijuana
Following 2019, when a number of states and municipalities placed restrictions on how and why employers can test for marijuana, a number of states have proposed similar legislation in 2020. Colorado, Washington, D.C., Massachusetts, New Hampshire, New York, and Congress have proposed a total of 8 bills that would place restrictions on marijuana testing in the workplace.
Similar to the language in Illinois’ recreational marijuana bill that passed in 2019, Colorado’s proposed bill would prohibit employers from terminating employees that take part in lawful activities while off-duty, even if such activities are considered illegal on the federal level (ex: marijuana use). Congress’ HB 1687 would remove limitations on federal employment for individuals that legally use marijuana under the laws of the state in which a person resides if the individual returns a marijuana-positive drug test. The 8 proposed bills contain a variety of provisions, all of which would severely limit either the type of testing an employer could perform or the actions an employer could take after an individual returns a marijuana-positive test.
Revisions to Workplace Testing Laws/New Workplace Testing Laws
Finally, a total of 14 states (Florida, Illinois, Iowa, Massachusetts, Missouri, New Jersey, New York, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Vermont, and West Virginia) have proposed a combined 43 bills that would either adjust existing workplace drug testing laws or put new ones in place, many of which would be industry specific.
For example, Tennessee has a combined 3 currently progressing bills that would both increase the time in which an employer has to document the reason for a reasonable suspicion drug or alcohol test from 24 to 30 hours, as well as adjust the drug-free workplace statute so that an employer has to provide their policy one time prior to testing in addition to at any point in time when the employee requests to see the policy.
Still other states, such as Oklahoma, have proposed bills that state that they will modify workplace drug and alcohol provisions, but have not provided any information as to what the modifications may include. We will likely see updates to these proposed bills, and more set forth, in the coming months.
Looking Forward to 2020
It’s clear that 2020 will be a big year for the drug and alcohol testing industry. Without a doubt, a number of states will pass new marijuana legislation, and it’s likely that we will see employer rights limited in some states. Throughout the year it is more important than ever before for both individual employers and industry providers to track progressing legislation to ensure that the industry is up-to-date and compliant as legislation passes and laws are quickly changed.
Not sure where to start? Visit CurrentCompliance.org, the industry’s only state drug and alcohol testing laws database, to learn more about subscription options and the benefits included in a subscription, including a monthly digest of progressing legislation sent straight to your inbox.
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