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['Drug and Alcohol Testing']
['Marijuana', 'Drug and Alcohol Testing']
02/02/2024
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Summary of differences between federal and state regulations
Marijuana testing
Under the Prohibition of Pre-Employment Marijuana Testing Act of 2015, employers may only test a prospective employee for marijuana use after a conditional offer of employment has been extended, unless otherwise required by law.
The Cannabis Employment Protections Amendment Act of 2022, which was signed in July 2022, includes protections for off-duty marijuana use.
With certain exceptions, the law prohibits employers from refusing to hire, terminating, suspending, failing to promote, demoting, or penalizing, an individual due to the individual's:
- Use of cannabis (medical or recreational);
- Status as a medical cannabis program patient; or
- Having cannabinoid metabolites in their system (failure to pass a drug test) without additional factors indicating impairment
The Cannabis Employment Protections Amendment Act of 2022 will become law after a 60-day congressional review period. It will not be enforceable until it is funded, however. The provisions applying to employers take effect the later of July 13, 2023, or when their fiscal effect is included in an approved budget and financial plan.
Government employers
The District of Columbia passed the “Mandatory Drug and Alcohol Testing for the Protection of Children Amendment Act of 2004.” This law makes drug testing mandatory for District of Columbia government applicants and employees in safety-sensitive positions. “Safety-sensitive” means those positions involving direct contact with children or youth, is entrusted with direct care and custody of children or youth, and whose performance of duties may affect the health, welfare, or safety of children or youth. The law allows testing for pre-employment, reasonable suspicion, post-accident, and random testing, with a mandatory 30-day prior written notice before beginning the drug testing program, and offers employees one opportunity to seek treatment for a drug or alcohol problem before the programs begins.
An employer may only test a prospective employee for marijuana use after a conditional offer of employment has been extended, unless otherwise required by law. An employer does not need to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or at any time during employment. An employer may deny a position based on a positive test for marijuana.
State
Contacts
District of Columbia Department of Employment Services
Regulations
D.C. Official Code, Division V, Title 32, Chapter 9A §32-931
Federal
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Contacts
Drug testing rules
U.S. Department of Transportation
Regulations
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Guidance document
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.