By Katherine Miller
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2020 was setting up to be a huge year of wins for the marijuana legalization movement, but with all that has happened so far, legislators have shifted their focus to other areas. Still, legislation pertaining to workplace drug and alcohol testing has been moving slowly forward. Already there have been over 500 bills that could impact workplace drug and alcohol testing that have progressed, failed, or passed this year. This article will give an overview of the three largest legislative trends in this area, as well as examples of those trends.
Drug Test Adulteration Bills
A trend that started in 2019 and has continued into 2020, drug test adulteration bills have been proposed, and even passed, in a number of states. Alabama Senate Bill 111, for example, passed in March. The bill prohibits the use or distribution of synthetic urine or urine additives that would be used for the purpose of defrauding a urine drug screen.[1]
Iowa House Bill 539, which is still progressing, would create the offense of defrauding a drug or alcohol test that is used for employment purposes in a private-sector workplace.[2] Iowa has two similarly worded bills in the Senate as well.
Missouri and Ohio also have similarly worded bills currently progressing through their legislatures.
Medical Marijuana-Related Bills
A number of states have proposed bills either legalizing medical marijuana or expanding a pre-existing program. Alabama, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Nebraska, North Carolina, South Carolina, Tennessee, and Wisconsin all have proposed the creation of a medical marijuana program in their states. While some of the proposed bills include solely the addition of a medical marijuana program and don’t address the use of marijuana in the workplace, a number of the proposed bills do. Indiana’s House Bill 1359, for example, not only creates a medical marijuana pilot program, but also contains employment provisions. As currently written, the bill stipulates that employers cannot discriminate against an employee/applicant based solely on their status as a medical marijuana card holder, or a medical marijuana card holder’s positive test for marijuana.[3]
Arizona, California, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Utah, Vermont, Washington, Washington, D.C., and West Virginia have all proposed amendments or adjustments to their existing medical marijuana programs. Some of the proposed bills are simple adjustments to existing programs, such as the addition of qualifying conditions, while others would directly impact employers in those states if passed. Minnesota’s House Bill 4632 contains a number of provisions impacting employers, outlined in the below list:
- Employers cannot discriminate in hiring, termination, or any term or condition of employment based on medical marijuana patient status.
- Employers cannot discriminate in hiring, termination, or any term or condition of employment based on a registered patient’s marijuana-positive drug test.
- Medical marijuana patients cannot use, be impaired by, etc. medical marijuana or a product of medical marijuana while on work premises, during work hours, or while operating an employer’s machinery, vehicle, or equipment.[4]
Recreational Marijuana Bills
One of the most popular legislative measures so far in 2020 has been either adjustments to existing recreational marijuana programs or the legalization of adult-use cannabis in states currently without. Although many of these bills fell by the wayside with the COVID-19 pandemic, as state revenues continue to fall some legislators are once again picking up the recreational marijuana war cry in hopes of bringing in tax money.
Arizona, Georgia, Hawaii, Iowa, Kentucky, Louisiana, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Tennessee, West Virginia, and Wisconsin all have bills in their 2020 sessions that propose the legalization of adult-use marijuana. These bills vary widely as to what they offer in terms of workplace use guidance and employer protections. New York’s Assembly Bill 1617, for example, not only legalizes recreational marijuana, but also stipulate that unless an employee can establish that an individual’s marijuana use has impaired their ability to perform job duties, the employer cannot take action based on conduct permitted by the bill or an employee’s marijuana-positive drug test.[5]
California, Washington, D.C., Illinois, Maine, Vermont all have proposed legislation that would either expand or impact their pre-existing recreational marijuana programs.
What’s Next?
2020 has progressed differently than any of us could have imagined and predicting what will happen next remains difficult. In addition to the above trends in legislation, we may still see some marijuana legalization measures (recreational or medicinal) that make it on to November 2020 ballots. Employers should keep a close eye on progressing legislation in their state(s) of business and ensure that they are sharing safety concerns with legislators where applicable.
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[4] House Bill 4632
