By Andrew Current
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The author of the science-fiction novel Dune is credited for saying: “There is no real ending. It’s just the place where you stop the story.” The same can be said for legislation. Many of the bills state lawmakers debated in 2019 were introduced in years prior, and over 200 bills introduced in 2019 are lingering into 2020.
The end of the year is as good a point as any to look at what became law, what did not, and what it may mean for the future. Between state and federal legislatures, over 500 bills were introduced that would shape how workplace drug testing is conducted. Of those, approximately 100 became law in 2019. This article will look at a few examples of key new laws, as well as some of those laws that failed to pass.
Marijuana Regulations
The most common bill, with over 300 proposals, regarded regulating marijuana in one way or another. That is roughly 60 percent of all bills dealing with a single topic. This indicates both the single-minded, groupthink focus that marijuana has received from lawmakers, as well as the potential for immense complexity in regulating a nascent industry. The results of these proposed bills branch out in every direction. For example, Illinois passed SB 1557, which amended the state’s marijuana laws to explicitly state that they did not create or imply a cause of action against employers who enforce a reasonable workplace drug testing policy. It explained that elements of a reasonable workplace drug testing policy include testing of employees and applicants, non-discriminatory random testing, termination, discipline, and withdrawal of a job offer based on a failed drug test. This represents a positive, well-reasoned compromise to allow employers to have the final say on safety in the workplace.
On the other end of the spectrum are states that are carving into that long-established space of business autonomy. Nevada’s AB 132 prohibits employers from taking action based on a positive pre-employment test for marijuana, turning a safety decision into a legal minefield. New Jersey’s AB 20 makes registration as a medical marijuana patient a valid medical explanation for a marijuana positive test result, denying employers the right to make judgment calls simply because someone is a cardholder. New York City passed a new municipal ordinance prohibiting testing of THC for pre-employment purposes, preventing employers from screening applicants outside safety-sensitive contexts for a common impairing substance.
Modifications to State Testing Laws
However, not all bills in 2019 were laser-focused on marijuana. Tennessee’s HB 389 and SB 312 modified the state’s voluntary drug testing law. If a medical review officer receives a prescription to justify a confirmed positive test result, this prescription must be less than six months old. Utah’s HB 16 made it illegal to distribute, possess, or sell an adulterant, as well as defraud a drug or alcohol test using an adulterant or the body fluid of another.
Importantly, more aggressive bills have failed to gain traction. For example, Massachusetts’ HB 3751 would have prohibited all workplace testing for marijuana but has not moved since a public hearing was held in the fall of 2019. Maryland’s SB 863 would have forbidden any inquiry into an applicant’s or employee’s marijuana use but has languished since a public hearing at the beginning of 2019.
More Changes to Come in 2020
The takeaway here is that year after year, workplace drug testing will continue to change. As more aggressive restrictions are proposed again and again, eventually the norm will shift towards that extreme. However, for the time being, legislation affecting drug testing is more of the same. In no case have employers been denied any right to protect the safety of workers, customers, and investments. Nevertheless, it is increasingly necessary to commit to regular compliance training, supervisor and employee education, and an abundance of caution.
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