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Marijuana Initiatives Do Not Require Changes to Drug Testing Policies

    Client Alerts
  • November 23, 2016

Last Tuesday’s election resulted in California and Massachusetts approving referendums to legalize recreational marijuana use. In addition, Florida and several other states passed or expanded medical marijuana use laws. As with prior measures, these latest initiatives may cause employers to ask whether their drug testing, possession and use policies need to be changed to account for the new state laws.

None of the ballot measures require immediate changes to employer drug use policies. Employers in these states are permitted to exclude persons from work if they test positive for marijuana use, even if that person has a medical prescription for such use. California and several states restrict random testing of employees in non-safety sensitive positions, and the new ballot initiatives do not affect these existing restrictions. Marijuana advocates in these states have pointed out the conflict between legalization while still permitting employers to exclude persons based on use, even in the absence of any evidence of intoxication at work. So far, these complaints have not resulted in states restricting employers’ rights to test for and exclude persons based on legal marijuana use.

This legal position may change over time. As states become more reliant on taxes generated from marijuana use, industry advocates may have greater ability to influence legislative changes. Also, as recreational marijuana use expands in these states, employers may decide that their drug use policies need to change in order to maintain a qualified workforce. In any event these changes are not likely to extend to jobs the employer demonstrates as involving safety sensitive concerns.