Drug testing is not a new phenomenon.
Drug Free Workplace Act of 1988 led to
increasingly frequent requirement for
applicants to take a drug test.
◦ Social pressure
◦ Regulatory mandates
◦ Health insurance costs
◦ Safety issues
◦ Concerns over liability and litigation
80% of employers require some sort of drug
testing from their workforce.
Myriad of devices and techniques to prevent
“masking” of controlled substances and to
insure “control” of the sample.
Ongoing changes in social, economic and
regulatory pressures on drug use and testing.
Changes in the legal and regulatory
framework of drug use.
New laws at the state level address critical
issues like the medical and recreational use
Ever changing federal attitudes toward
Acceptance of marijuana use is growing
Increasing awareness of prescription drug use
and abuse and the impacts on the workplace.
Two intertwined issues:
◦ Strong rates of recreational use
◦ Concerning trend of employee reporting to work
under the influence of powerful prescription
A blanket drug free workplace policy may no
longer be appropriate, particularly in light of
prescription drug use and abuse.
How do these changes impact our approach
to drug use and workers who come to work
under the influence?
Marijuana use and medical applications go
back thousands of years.
Medical applications as a salve, anti-nausea,
diuretic and laxative.
In the 19th century, cannabis was a popular
in the 20th century, social attitudes to drugs
like marijuana and morphine shifted, leading
to stricter regulation.
Increased regulation led to criminalization in
1970, with the Controlled Substances Act.
A wide range of drugs identifies for their
potential for abuse, appropriateness for
medical use and general safety.
Marijuana and LSD are Schedule 1 drugs,
illegal under federal law and identified as
having no legitimate medical purpose.
A small but growing opposition argued that
medical marijuana use in treating the
symptoms and side effects of various
cancers, HIV/AIDS, epilepsy, multiple
sclerosis and glaucoma.
Proposition 215 in California was the first
attempt to protect patients, caregivers and
physicians from state level prosecution for
the possession, use, cultivation or
recommended use of medical marijuana.
DOJ initiated criminal prosecution of
physicians under federal law.
Class action lawsuit, Conant v. Walters,
permanent injunction by a federal court,
allowing medical marijuana.
As of today, 23 states and DC permit medical
use of marijuana and 13 states are
Most of the laws decriminalize the
therapeutic use of marijuana by individuals
with serious health conditions.
Broad diversity in the language of the various
Little commonality on:
◦ How much cannabis may be legally possessed
(ranges from 1oz to 1.5 lbs.)
◦ How a patient acquires the marijuana. (some allow
home grown, other dispense it through a state
◦ The specific medications allowed under the law.
◦ The registration process the patient has to undergo.
◦ How a patient proves a medical marijuana
exemption to law enforcement.
The lack of consistency makes it challenging
to make broad statements about medical
Since it is a Schedule 1 drug, physicians may
not prescribe it, only recommend it to their
patients as part of their therapeutic or
There is also no uniform guidance for which
medical use is appropriate.
Marijuana clearly remains illegal under federal
law, regardless of state laws.
Clinton administration sued states that
passed these laws.
Bush administration raided facilities
Obama administration pursues individuals
who cultivate, sell or distribute medical
Awareness of Marinol (dronabinol).
Synthetic cannabis that is legal under federal
law (schedule 3 drug)
It provides many of the same benefits as
cannabis and can be prescribed.
With natural cannabis, there is no standard
dosage so physicians struggle with usage.
Marinol is a pill to be swallowed and is slower
acting so does not provide the immediate
relief of cannabis.
It cannot be used to combat nausea and
vomiting associated with some medical
Growing acceptance of non-medical use of
Most of the anti-marijuana stance and
criminalization is the result of its recreational
Recent polls indicate that a small majority of
Americans favor outright legalization of
marijuana. (65% of millennials)
2 states, Colorado and Washington, have
decriminalized non-medical possession and
use of marijuana.
As long as marijuana is a Schedule 1 drug,
outright legalization is a difficult legal issue.
This tension creates problems for employers.
◦ Oversee sales and distribution
◦ Gather taxes
◦ Regulate the marijuana industry
◦ Safety concerns
No easy, effective way to determine if a driver is under
the influence of marijuana
The fundamental question, in light of the
evolving situation, is: do we need to
accommodate our employees’ ability under
state law to consume or possess marijuana
for medical or recreational purposes?
Luckily, the guidance, with a few exceptions,
has been relatively clear and consistent-as
long as cannabis is illegal under federal law,
we can take action against an employee who
tests positive for it.
The vast majority of states that have medical
marijuana laws do not address an employee’s
right to consume cannabis.
While there is a grey area given the lack of
direct references, litigation from those who
consume medical marijuana and are
disciplined or terminated by the employers
has been fairly consistent.
Decisions by courts in California, Washington,
Oregon. Colorado and the US District Courts
have supported the rights of an employer to
take adverse action against a candidate or
employee based on the presence of marijuana
in a drug test, even if that person is
permitted to use marijuana for medical
These decisions have been based on 2
◦ Marijuana is still classified as a Schedule 1 drug by
the federal government
◦ Marijuana use by employees could present safety
concerns for an organization and organizations can
take reasonable steps to protect themselves from
Five states have some employee protection
under the law, but they vary from state to
Connecticut states that employers can
prohibit the use of marijuana during work
hours and discipline employees impaired
during work hours.
Employers subject to DOT regulations have
greater freedom to take action against an
Recreational marijuana laws do not prohibit
employers from taking adverse action against
an applicant or employee for cannabis use.
Unlike medical marijuana cases, these
individuals cannot claim disability
discrimination or violations of public policy to
Another issues is pre-employment drug
A difficult question is, do we need to shift
from testing solely for the presence of
marijuana to a test that checks for
impairment? (if there was one?)
Employers also seek to address safety
concerns when their workers use drugs
properly but are unable to work while under
More than 20% of Americans over the age of
12 state that they have uses prescription
drugs in a non-medical manner.
Prescription drugs, after marijuana and
alcohol, are the most commonly abuse drugs.
The CDC & P classified this as an epidemic
and the fastest growing drug problem in the
US, with 1 death every 19 minutes.
Like illegal drugs, prescription drug use can
have an impact on accidents, job
performance and other incidents, like theft.
Prescription medications present other
◦ Their mere presence does not constitute an offense
◦ Many of these employees are protected under the
◦ Workers can claim privacy of their health
information and not share details of their drug use
Employers have some latitude to inquire into, or even
test for, prescription drugs used by the employee.
Employees in safety sensitive position or in a post
accident situation could be subject to question about
Step one, fundamentals:
◦ Establish if your policy is adequate based on your
◦ Create a list of the positions to determine safety
◦ Clarify if your organization falls under federal
◦ Construct a list of the states your organization
Step two, layer in complexity
◦ Engage your counsel
◦ Work with a medical review officer to understand
the drug testing process
◦ Know best practices
◦ Establish a methodology for reviewing and updating
Step three, address specific issues
◦ Determine if your organization is comfortable with
exceptions to the policy
◦ Ensure the test panel comprises the right drugs
◦ Establish how you will determine “proof”
◦ Include specific language as to use, possession or
influence in the workplace