The drug is still fully illegal in 8 states


As more and more states legalize the recreational use of marijuana, many employers are beginning to wonder if they should change the way they drug test. Drug testing has always served as a very important part of employment screening, especially when it could create a safety or health risk for the employer.


The Department of Transportation’s (DOT) rule, 49 CFR Part 40, describes required procedures for conducting workplace drug and alcohol testing for the Federally regulated transportation industry. Under Federal law, the Department of Transportation does not allow for the use of medical or recreational marijuana in safety sensitive positions subject to federal testing guidelines.


Non-DOT testing is not federally regulated and, therefore, is up to the discretion of the company to decide what drugs should be included in the test. To include or remove marijuana from the testing list can be a complicated decision. Factors that should be considered might include on the industry, employee positions, company policies, and state laws and regulations.


Recently, New York City has banned many employers from conducting pre-employment marijuana tests, now making it an unlawful discriminatory practice. However, according to recent communication from our Reference Services, Inc. legal partner, this law does not apply to positions with the “potential to significantly impact the health or safety of employees or members of the public” as determined by rules communicated by the City.  Questions regarding these exceptions should be referred to the employer’s legal counsel to assess whether the position meets the requirements set forth by the City.


New York City is just one example of a city that has created a law which should be carefully considered when changing drug testing policies. While this new law does not affect all of our clients, it is important for employers to be aware and stay ahead of the ever-evolving marijuana state laws like New York. As of July 2020, 12 states have fully legalized marijuana and only eight states remain fully illegal. The remaining 30 states have either legalized or decriminalized marijuana is some form.


The compliance team at RSI is here to help if you are considering changes to your current drug testing policies. We can help give guidance and provide additional questions you should ask your HR team and legal counsel. Drug testing packages are available that eliminate marijuana and THC if needed.


Reference Services, Inc is headquartered in Evansville, IN and has remained one of the premier employment background screening companies in the country. Clients representing almost every industry imaginable rely on RSI to provide fast, accurate and legally compliant background checks on their applicants so they can hire a more productive, safer, and reliable workforce.

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