Should I test based on state laws where my employee lives or where they work?
Medical marijuana laws vary by state and it’s important that employers address the specific laws that pertain to their company and employees when creating a drug testing policy. Each state has its own system of medical marijuana laws, which may or may not include bills that provide explicit employment protections. For example, in California, legislation allows employers the right to terminate an employee who tests positive for marijuana, even if they hold a medical marijuana card. For example: Imagine you have an employee who lives in Arizona but works in California, and the employee has a medical marijuana card in which they use in private. Arizona protects employees from discrimination while holding a medical marijuana card, but in California, an employer may fire employees who test positive for marijuana, even if the use was off-duty and for a medical condition with a valid medical marijuana card. To avoid litigation in this scenario, it would be advisable to treat this employee based on Arizona laws.
It is pertinent for you, as an employer, to have a policy in place for when this occurs and to follow each states' medical marijuana laws accordingly.
Do different testing policies for different clients have different saturation levels as a threshold for positive vs. negative tests?
YES - All drug testing policies have a testing “panel.” Testing panels consist of substances and level thresholds (limit of detection). DISA offers policies with customized panels, in addition to policies that require standard/regulated panels. (Please note, all DOT and some safety-sensitive, non-DOT drug testing programs have mandatory testing panels)
If an employee informs the employer that they are using a CBD product, what is the employers responsibility if that employee is in a safety-sensitive position?
The employer’s responsibility is to explain that there is no exception (under DOT regulations) for the use of any product that presents as THC metabolites and exceeds set thresholds on a DOT drug screen. If it is non-DOT, they should refer to the company policy. If the policy accepts CBD oil, then that should be communicated.
If an employee uses medical marijuana, can they be terminated if they test positive for marijuana?
Medical marijuana laws vary by state and it’s important that employers address the specific laws that pertain to their company and employees when creating a drug testing policy. Each state has its own system of medical marijuana laws, which may or may not include bills that provide explicit employment protections. For example, in California, legislation allows employers the right to terminate an employee who tests positive for marijuana, even if they hold a medical marijuana card.
In addition to state laws, employers must also address federal standards pertaining to workers’ comp, the Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), unemployment benefits, drug-free workplace laws, and state handicap/discrimination laws. Even in states where legalized, the laws do not protect an employee that is impaired while at work, under the influence, or using on the job, especially when working in a safety-sensitive position. While a workplace drug test will detect THC, in most instances, the same test will not determine “impairment.” This is why documenting suspicious behavior and implementing manager training for reasonable suspicion and probable cause will help determine if an employee is impaired while on the job.