This month, the Minnesota House of Representatives approved a bill that would legalize marijuana for recreational use. And while this bill faces a disapproving Republican-controlled state Senate, the bill does bring some questions for manufacturers and their drug policies.
HIGH-LEVEL VIEW OF THE BILL
- Limit the use of marijuana to those 21 and older
- Ability to possess 10 pounds of marijuana in your home or 2 ounces in a public space and ability to transport 8 grams or less
- Rid people of criminal records who had previously committed minor marijuana-related drug offenses
- Create regulatory boards and advisory councils to oversee usage
- Introduce marijuana produce standards
- Put in place taxation on marijuana product sales
THE NEW DILEMMA
Employers implement drug and alcohol testing policies to further goals of providing a safe work environment, decreasing workplace accidents, and increasing productivity. However, many testing policies currently in place do not address the increasing legalization of marijuana and current labor shortages. Manufacturers now must analyze whether maintaining a drug-testing program in furtherance of their goals is legally permitted and worth the hassle?
In making this determination, an employer must consider the needs of the business in addition to the ever-changing applicable laws. For instance, some employers are federal contractors and must follow specific federal drug-free workplace laws. Other employers are struggling to find qualified employees and drug testing, particularly for marijuana, will hinder their ability to attract and retain talent.
Many employers are now forced to reconsider pre-screening and employment policies that may further limit hiring, impede continued employment, and exacerbate the labor shortage problem.
COMPLIANCE WITH FEDERAL AND STATE LAW
Some employers are required under federal law to continue to maintain a drug-free workplace and are bound by testing laws for certain employees. For example, employees performing tasks defined by the U.S. Department of Transportation (DOT) as safety-sensitive are subject to DOT workplace drug and alcohol testing. Employers have no discretion in deviating from federally mandated requirements for employees in these positions which include aviation, commercial motor carriers, maritime, pipeline, railroad, and transit.
Another example is employers that are awarded government contracts as they are often required to have drug and alcohol testing policies in place for all employees providing services under such contracts. For these employees, employers do not have any discretion to revisit their drug and alcohol and testing policies. The federal laws applicable to these positions supersede all state drug and alcohol and testing laws regarding the same.
Absent a requirement under federal law, most employers are not required to establish or implement any drug or alcohol testing policies. However, if they elect to do so, they are required to comply with the laws of the state in which the employees are employed. Drug and alcohol testing laws vary from state to state and multi-state employers will have to implement policies that comply with all applicable state laws. In Minnesota, most drug and alcohol testing of job applicants and employees is governed by the Minnesota Drug and Alcohol Testing in the Workplace Act, also known as DATWA. I will not go into an in-depth analysis of DATWA, but if you have questions about complying with this law, our HR & Employment attorneys are happy to discuss with you.
POLICY AND TESTING OPTIONS
There has been little guidance provided to employers as to how they comply with the recent changes in state laws legalizing marijuana for recreational use and the continuing labor shortage issue. The laws themselves provide some guidance on how policies are to be adjusted, but employers are left with much discretion to decide how to revise policies to comply with the laws and the changing needs of their business.
Below are some approaches an employer may consider:
- Classify employees and create drug and alcohol testing policies for each classification. Employers are starting to reconsider whether employees that are not in safety-sensitive positions should be subject to the same drug and alcohol testing policies as those employees holding safety-sensitive positions. In other cases, some employers want to make sure that certain employees will be subject to mandated drug and alcohol testing laws despite the change in state laws concerning recreational drug use.
- Eliminate marijuana from the testing panel. Due to the restrictions being implemented on testing for marijuana and the widespread use of the drug, particularly among younger workers, many employers have eliminated marijuana testing for general employees (those not regulated under federal law). Some employers only test employees for marijuana in the following situations: (1) the employee is in a safety-sensitive position; (2) the position is federally mandated; (3) there is reasonable suspicion of impairment; or (4) the employee was involved in an accident. Outside of these four situations, employers have limited options in responding to an employee’s positive marijuana drug test.
- Eliminate language limiting marijuana use outside of the workplace. Any language restricting marijuana use outside of the workplace should be eliminated from the drug policy. Additionally, any language pertaining to a zero-tolerance drug policy should be revised to limit the scope of the zero-tolerance policy to the workplace only. Excessive restrictions in drug policies can expose employers to liability for violation of these new state laws.
If you have questions about your drug testing policy, our Manufacturing practice group is here to help. Please contact me, Jim Seifert (Head of the Practice Group), at james.seifert@fmjlaw.com, Heidi Carpenter (Shareholder and HR & Employment Attorney) at heidi.carpenter@fmjlaw.com, or Bob Fafinski (Shareholder and CEO) at robert.fafinski@fmjlaw.com.
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