Questions & Answers:
Do any states require random drug tests?
No, but there are states that prohibit them. Public sector jobs may require random drugs testing, such as police officers etc.
Are companies removing marijuana from their testing in recreational states?
Yes. A lot of them. This is most prevalent in states with legal recreational marijuana, but even in other states, they are dropping it to expand their potential talent pools.
How likely is the Controlled Substance Act to change under the current congress? Would that change if control of one or both houses changes in November?
I think it’s going to happen eventually, regardless. Every congress is introducing legislation. That being said, it’s not likely to change with this administration.
What if you have no jobs that provide for the accommodation needed?
This is just like any other ADA case, you must go through the full interactive process to be sure. If you ultimately can’t accommodate, then you can terminate/deny employment.
Does CBD oil cause employees to test positive for marijuana?
I’m not 100% sure but I think it might. It would be best to do some outside research to answer this question.
If you can't ask employees about use of prescription drugs, how do you handle the use of benzodiazepines and other drugs that are not opioids? You may not find out about prescription use until after an accident. Is there a drug program that covers all the types of prescription meds, including opioids?
The employee may not be required to report prescription drug use unless there is a direct threat to safety. This is why you need to encourage employees to self-report, and train supervisors and managers to identify issues. It can help to have peer advocates to consult as well.
Can you comment on the responsibilities of an employer that is a federal contractor and located in a state where marijuana is legal?
I believe a lot of federal contracts may have requirements for testing, depending on the job. This is going to depend specifically on your contract and what the job is. Additionally, Federal law would trump state law for federal contracts.
Can you avoid the question by requiring that the employee be alert and accomplish certain tasks within a time period and not deal with as a Marijuana/opioid issue?
To a certain extent you can, yes. If you have a situation where you suspect drugs are inhibiting an employee’s performance, you can try addressing it as a performance issue. Communicate with the employee how they are not meeting your standards and be clear as to what is expected moving forward.
If an employer operates amusement rides, would we be able to do random drug testing to amusement ride operators?
This is specific to the state level. Different states have different laws or rules governing this so I couldn’t say without knowing the state laws. If you could show direct threat then you might be able to do it, but you’d have to look at your state’s regulations to know whether or not that is permissible.
Do you have benchmark data on whether companies are eliminating pre-employment testing altogether, or limiting it to safety-sensitive positions?
I do not have benchmark data per se, but I have my experience. I think for the most part employers don’t care about whether or not someone is using illegal drugs if they’re not in a position that’s going to cause safety issues. They are worried about performance.
That being said, a number of employers are moving away from testing for marijuana specifically because it stays in the system so long, and with a tight labor market, they may not be able to find someone equally qualified to do the job.
What if you did a web search on an employee and found that employee had been arrested for possession of a drug. What responsibility do you have once you have discovered this?
This gets into negligent retention/hiring. Consider what they do: Are they just a cashier? Do they operate heavy machinery? Assess the risk associated with keeping or hiring that employee at their specific position. Consult with your legal team before making a decision.
What if you mandate that the employee must use the Employee Assistance Program, but the employee fails to do so? Is this cause for reprimand/termination?
Yes absolutely. You can require it as part of last chance agreement and if they do not comply, you would likely have a legitimate reason to reprimand/terminate them.
If someone goes on vacation to a recreational state and returns to work and is randomly tested, are they subject to termination?
If it’s not protected in their state, they can be yes, especially because marijuana is not legal on the federal level.
Would a company have to notify employees if they drop marijuana from the drugs tested for? We have a random drug testing policy at my location.
I don’t think you have to alert them, but you can. If you’re removing it and you don’t inform them, you’re not really harming them.
With hair sample tests, does coloring affect the results?
I do not know, but it is a good question. It would be best to seek information from someone with more specialized knowledge of the subject.
With reasonable suspicion from physical symptoms/signs, the example of bloodshot eyes: certain allergies etc. would carry similar symptoms. Would it be best to confirm several physical symptoms first before testing an employee?
Yes. You don’t just want to test someone just because they have one symptom. Testing an employee who is sober will likely upset them and negatively affect morale.