Pre-Employment Drug Testing for Marijuana

By Glenn A. Duhl, Esq.

Medical-Marijuana-StethoscopeThe prevalence of medical marijuana has made the legal landscape complicated for employers seeking to use pre-employment drug tests as a screening tool for applicants. New York City’s recent ban on pre-employment marijuana testing, along with recent decisions in Connecticut and New Jersey, may affect employers’ drug testing and safety policies going forward.

Effective May 10, 2020, employers in New York City will be prohibited from requiring applicants to submit to pre-employment drug testing for the presence of marijuana and THC. New York City’s ban does not apply to all employers, as there are exceptions for certain safety-sensitive industries – including law enforcement, construction, healthcare – and jobs that require supervision of children or medical patients.

Employers in New York City may still conduct pre-employment drug testing for other drugs, such as opiates, cocaine, and amphetamines. On its face, the new law applies only to “prospective employees” and does not address drug testing of existing employees. The New York City ban also does not affect an employer’s right to discipline an employee who shows up to work under the influence of marijuana.

While employers could previously rely on the federal Controlled Substances Act – which classifies marijuana as a Schedule I drug – in enforcing their zero-tolerance drug policies, judicial interpretation of state laws in Connecticut and New Jersey has created an additional layer of complication for employers.

In Noffsinger v. SSC Niantic Operating Co., LLC, 338 F. Supp. 3d 78 (D. Conn. Sept. 5, 2018), the U.S. District Court for the District of Connecticut held an employer liable for discrimination under the Connecticut Palliative Use of Marijuana Act (PUMA) when it rescinded an applicant’s job offer on the basis of her legal medical marijuana use. The Court reasoned that the applicant was a qualifying medical marijuana patient under PUMA, the employer knew of her status as a qualifying patient, and rescinded her job offer following a positive THC drug test result because of her medical marijuana use.

Similarly, in Wild v. Carriage Funeral Holdings, Inc., et al., Superior Court of New Jersey, Appellate Division, Dk. No. A-3072-17T3 (Mar. 27, 2019), the New Jersey appeals court held that medical marijuana patients are protected by the New Jersey Law Against Discrimination and cannot be discharged for failing a drug test, so long as they are not under the influence while at work. In that case, the employer terminated an employee following a positive marijuana test result in a post-accident drug test. The Court held that the employee had sufficiently stated a cause of action for disability discrimination because he was legally using medical marijuana as part of his treatment for cancer.

While only 10 states and the District of Columbia have legalized marijuana for recreational use, a total of 34 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands have approved comprehensive, publicly available medical marijuana programs. Given the increased prevalence of medical marijuana, employment litigation in this area is likely to increase. Employers are encouraged to review their drug testing policies regularly to comply with new state rules and regulations.

Glenn A. Duhl is a management-side employment and litigation lawyer at Zangari, Cohn, Cuthbertson, Duhl & Grello P.C. Contact: (203) 786-3709; gduhl@zcclawfirm.com; www.zcclawfirm.com.

The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.

Image courtesy of CannaMD