Historically, pre-employment drug testing has been legal in every state; however, in the era of legal marijuana, more states are considering restricting or out-right banning applicant drug testing. Currently, several states encourage or require pre-employment testing in order to stay compliant with the state’s voluntary or mandatory law(s). While some states place certain restrictions on pre-employment testing, the vast majority of states don’t require any sort of special conditions in order to perform applicant testing outside of the procedures that are required generally of all types of testing.

In light of the successes of the marijuana legalization movement, pre-employment drug testing is becoming a contested subject. With multiple states progressing legislation that would restrict applicant testing, and a few municipalities and states having already restricted it, can employers still conduct pre-employment drug testing, particularly for marijuana? Are they putting themselves at risk of litigation? This article will examine these questions through the lens of state law(s).

States that Require Pre-employment Testing

What type of laws require applicant testing? This category is made up of two types of law: voluntary and industry-specific laws.

Many voluntary laws require applicant testing as part of the workers’ compensation premium discount program. In these states, applicant testing is only required when an employer wishes to participate in the voluntary program and receive the benefit(s) offered by the program (typically a discount on an insurance premium). Florida and Georgia are both examples of states in this category. Both require applicant testing by employers who wish to qualify for a discount on their workers’ compensation premium. Florida attaches no special conditions beyond requiring applicant testing; Georgia adds the condition that it must follow an employment offer. 

Industry specific laws also often require applicant testing. Illinois, on a general level, does not have any kind of workplace drug testing law. However, the Land of Lincoln requires drug testing of public works contractors and subcontractors and this law makes pre-employment drug testing mandatory. There is a provision that allows employers to skip applicant testing if the employee has been participating in a random testing program 90 days prior to commencing work on a public works project. This would also include any industry covered by federal Department of Transportation (DOT) regulations.

When it comes to pre-employment drug testing, even for marijuana, if it is required by state or federal law, then an employer doesn’t really have a choice. This is especially true of federal law.  In fact, the DOT doubled down on its marijuana stance after Colorado and Washington legalized the substance for recreational use in 2012:

“We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.” [1]

States with Restrictions

The most common condition placed upon applicant testing by state law is the post-offer clause, which is a smart business decision regardless of applicable state law(s). Boulder, CO, Maine, Minnesota, Oklahoma, Puerto Rico, Rhode Island, and Vermont all limit applicant testing to individuals who have received a conditional offer of employment. This means an employer may only require pre-employment testing once the company has informed the applicant that they are the “single finalist” for a position (to borrow the wording from Boulder’s law). 

Some may argue that this post-offer requirement conflicts with employers that wish to test for marijuana, but also avoid allegations of discrimination. If an individual is the single finalist for a position but is not hired because s/he tests positive for marijuana, some may argue that that equals discrimination. Let’s borrow a line of reasoning from recent OSHA developments. According to OSHA, a blanket post-accident testing program could be considered discrimination against those that report accidents. However, if an employer is testing in order to comply with state or federal law, then s/he won’t be considered to be testing discriminatorily. The key here is the motive behind the test; to discriminate or to comply with the law. Using this reasoning, it is hard to argue personalized discrimination when an employer is simply complying with state drug testing laws.

With marijuana legalization come extra restrictions for employers that perform pre-employment testing. It is becoming more common for states or municipalities to place additional restrictions on employers once marijuana has become legal in their state/city. New York City, for example, passed an ordinance in 2019 that prohibits most employers from requiring that employees be tested for THC/marijuana as a condition of employment. Although the ordinance includes a small safety-sensitive carve-out, employers with operations in New York City should be aware of this ordinance and adjust policies accordingly.

Similarly, Nevada passed a law in 2019 that states that an employer cannot refuse to hire an applicant based on a marijuana positive drug test. Again, the law includes a safety-sensitive carve-out.

States with No Special Restrictions

The vast majority of states allow applicant testing without any sort of specific restriction or regulation. Typically, general testing procedures, chain of custody protocols, laboratory requirements, etc., would still apply to applicant testing just as they do for employee testing. However, with legislation trending toward placing restrictions on pre-employment marijuana testing, it is likely that more states will move from the realm of no restrictions to a restricted status in 2020 and beyond.

Conclusion

While all states permit applicant testing, it is true that some marijuana laws have added a new layer of complexity and will continue to do so. It is imperative that employers carefully review their pre-employment testing policy, study all applicable state drug testing and marijuana laws, and even consult an expert to ensure they are “playing it safe.”

Interested in having state drug testing laws at your fingertips? Visit currentcompliance.org to learn about the industry’s only comprehensive and regularly updated state drug testing law database. Need to update your policy or create a new one? Contact CCG at policy@currentconsultinggroup.com to learn more about our policy development services.

© 2010-2020 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder are required.

---

[1] Swart, Jim L. “DOT ‘Recreational Marijuana Notice.” U.S. Department of Transportation, 3 Dec. 2012. Accessed 22 Jan. 2020. https://www.transportation.gov/odapc/dot-recreational-marijuana-notice.

Sign up to receive our newsletter straight to your inbox