Do You Know Your State's Marijuana Laws?

About 7 min

Do You Know Your State's Marijuana Laws?

The rise of remote workers in response to the coronavirus pandemic has also renewed employer’s interests in drug testing. Namely – should you, and can you - drug screen your work from home (WFH) employees? And if so, what are the most reliable methods in this age of virtual work?

These questions will likely steer how you revise and/or implement any return to work plans involving drug screening. And, if you want to screen for marijuana, you may need to brush up on your state's employer protection laws. With the proliferation of marijuana legalization (recreational and medicinal), employers may not be aware of the rights you have under the law. 

Here are some tips to help you approach marijuana testing and other drug screening measures, and a resource guide for your state law.

Drug Use in a Crisis

Studies show substance abuse increases dramatically during a national crisis and remains at elevated levels for months afterwards. It’s widely reported that people are increasingly using marijuana for comfort.

Experts say the reason is the link between coinciding mental health issues, an infectious disease outbreak, acute stress, loneliness, and boredom, plus the relative flexibility employees have to fill their days at home as they wish (as long as their output remains steady).

Employers might consider updating their policy against the use of drugs while working at home or at the workplace – now, and when the pandemic is over. If you're looking for tips to update your policy, download this On Demand Webinar, How to Prepare Now for a Drug-Free Post-Pandemic Workplace, presented by EBI and Current Consulting Group and sponsored by OraSure Technologies. 

Drug Testing in a Crisis

Revising your drug testing policy also presents an opportunity for employers to evaluate new drug screening solutions – like a breathalyzer for marijuana - that might soon be available.

Current testing methods for marijuana can show whether someone has used within the last 24 hours or up to the last 3 months. A new technology claims to measure THC in the breath. Someone who smoked pot will show THC levels for 2 to 3 hours. If they’ve consumed edible marijuana products, they can show impairment for up to 5 hours. As reported in EBI’s Screening News Network, one state has agreed to spend $300,000 over the next year studying the new product from Hounds Labs in California.

Drug Legislation in a Crisis

Although laws are trending more toward employee rather than employer protections in this era of legal marijuana, some legalization bills are still passing with provisions that provide protections for employer rights. Many states’ legalization laws include both employer and employee protections. You should review all applicable laws in your state to fully understand the protections offered under each law. 

Here are some of the most interesting and evolving laws on the books.

Virginia “Bans the Box” Marijuana Possession

At the end of May, Virginia Governor Ralph Northam signed a bill that essentially decriminalizes simple marijuana possession. As of July 1st, employers and educational institutions will not be allowed to ask applicants to disclose any information about previous marijuana charges. Not only are they not allowed to ask, the law specifically allows applicants to leave out simple marijuana possession when asked about arrests, criminal charges, and convictions, even if they were caught before this law was created. Employers and educational institutions who violate this new law could face criminal charges.

This a new take on a Ban the Box law. Typically, Ban the Box refers to laws that prohibit employers from asking about a job applicant’s criminal history on the initial application.

While it is still technically illegal to possess marijuana in Virginia, people caught with up to an ounce of the drug will only face a maximum fine of $25. This will be a civil penalty, not a criminal conviction.

NYC Says NO to Pre-Employment Pot Testing

A recently passed New York City Council law essentially deems pre-employment marijuana testing to be an “unlawful discriminatory practice.” In simpler terms, you might have to take marijuana out of your pre-employment drug testing panel.

The process took an entire year, from passage to implementation, but employers must now make the necessary adjustments.

These positions are exempt from the new rule:

  • Law enforcement and other safety-related positions
  • Commercial driver’s license holders
  • Those working in childcare, medicine or with vulnerable populations
  • Positions requiring compliance with the city’s building code
  • Some federal contractors
  • Anyone covered under a collective bargaining agreement that requires drug testing

Drug Legislation After COVID-19

Thirty-two states have employer protections outlined in their marijuana laws. As of March 2020, twelve additional states had proposed legislation containing employer protections currently advancing through the state legislature. Do you know the laws in your state?

Click here to contact us and receive a guide detailing the state by state specifics.

Staying informed on current compliance related events like evolving marijuana laws is a big ask, especially for human resources and compliance departments already stressed out, understaffed, and overworked from navigating COVID-19. But even when there isn’t a global health emergency, marijuana laws can still be complex.

That’s where being an EBI client can provide value-added service to your overall screening package. EBI clients have privileged access to our robust Compliance Library that is continually monitored and updated with the most current background screening, drug testing, and human resources related information. Clients can find webinars, reports, infographics, and white papers that answer all your most pressing and immediate questions and concerns.

Get to Know EBI

If you have any drug testing, marijuana, or other compliance-related questions, feel free to email us, connect with us on our LinkedIn page, or speak with one of our experts.

As always, our goal at EBI is to advocate for your business goals and help propel you forward in our new enterprise climate.

Stay up-to-date on Employment Laws & Regulations with EBI's Screening News Network.