Drug Testing Laws in 2021 and What to Expect in 2022

16 states and the District of Columbia have fully legalized Marijuana and 33 states have legalized medicinal marijuana. In some states, those laws also place certain conditions on employers making it more challenging to test for marijuana.

New passed in 2022 and 2021

Read our blog post “New Drug Testing Laws in 2021 Employers Should Know About” to learn the legalization laws that were passed in 2021 and any guidance provided to employers.

New laws so far in 2022

Delaware

Amends drug testing requirements for applicants and employees of the Department of Services for Children, Youth, and their Families (DSCYF).

District of Columbia

Amends medical marijuana law to extend expiration date of medical marijuana registration cards, allowing seniors 65 years and older to self-certify that they are utilizing cannabis for medical purposes.

South Dakota

Amends medical cannabis law. Defines "safety sensitive job" and defines "under the influence of cannabis."

Mississippi

• Does not require any employer to permit, accommodate, or allow the medical use of medical cannabis, or to modify any job or working conditions of any employee who engages in the medical use of medical cannabis.
• Does not prohibit any employer from refusing to hire, discharging, or disciplining an individual with respect to hiring, discharging, tenure, terms, conditions, or privileges of employment as a result of that individual's medical use of medical cannabis, regardless of the individual's impairment or lack of impairment.
• Does not require a workers' compensation insurer or self-insured group to pay for or reimburse any other individual or entity for costs associated with the medical use of cannabis.
• Does not affect an employer's right to deny or establish legal defenses to the payment of workers' compensation benefits to an employee on the basis of a positive drug test.

Marijuana Decriminalization

District of Columbia

• Applies to public employers only.
• A public employer may not refuse to hire, terminate, penalize, fail to promote, or take adverse employment action against an individual based upon their status as a qualifying medical marijuana patient.
• This does not apply if the individual used, possessed, or was impaired by marijuana at their place of employment or during employment hours.
• A patient's failure to pass a drug test due to marijuana components or metabolites may not be used as a basis for employment-related decisions unless reasonable suspicion exists that the qualifying patient was impaired at their place of employment or during work hours. 
• This does not apply if the employee is in a safety-sensitive position or if compliance would cause the violation of federal law, regulation, contract, or funding.

Montana

• Employers cannot take adverse employment action, including follow-up testing, if the employee presents a reasonable explanation or medical opinion that test results were not abused by the illegal use of a controlled substance or by alcohol consumption. 
• Employers cannot refuse to employ or discriminate against an individual because the individual legally uses a lawful product (including marijuana) off of the employer's premises during non-working hours. 
• This does not apply if the use of a lawful product impacts an individual's ability to perform job-related employment responsibilities, impacts the safety of other employees, or conflicts with an occupational qualification that is related to the individual's employment. 

Recreational Marijuana Law

Connecticut

• Like marijuana discrimination laws but not passed as a separate law.
• No employer may refuse to hire, discharge, penalize, or threaten an employee solely on the basis of their status as a qualifying medical marijuana patient.
• Employers can prohibit the use of marijuana during work hours and discipline an employee for being under the influence of marijuana during work hours. 
• Nothing limits an employer from taking appropriate adverse or other employment action upon determining that an employee manifests specific, articulable symptoms of drug impairment while working or on call that decrease or lessen the employee's job position.

Effective July 1, 2022, a drug test of an applicant or employee (other than a prospective or existing exempted employee) that yields a positive result for only THC shall not form the sole basis for an employer’s:

• • Refusal to employ.
  • Refusal to continue to employ.
  • Or penalization of an individual.
• Unless failing to do so would violate a federal contract or cause the loss of federal funding, or the employer reasonably suspects an employee's use of cannabis while engaged in the performance of the employee's work responsibilities.

New Jersey

• Similar to marijuana discrimination laws but not passed as a separate law.
• Recreational cannabis is to be regulated the same as legal alcohol.
• Employers shall not refuse to hire or employ any individual, discharge any individual, or take adverse action against an individual with respect to compensation, terms, conditions, or other privileges of employment because that individual does or does not use cannabis.

Per special rules adopted on August 19, 2021, as no Workplace Impairment Recognition Expert standards have yet been adopted, employers are not required to perform a physical evaluation on an employee being drug tested. This is in effect until August 19, 2022.

Other Cannabis Laws

California 

• California permits industrial hemp to be included in products (including  food). 
• California authorizes cultivation and distribution of cannabis for research purposes, pursuant to registration with the United States DEA. 

Delaware

• Delaware allows nurse practitioners and physician assistants to recommend medical marijuana for adult patients. 

Florida 

• Florida removes provisions concerning scheduling of certain drug products containing cannabidiol (CBD). 

Mississippi

• Mississippi authorizes dispensing, possession and use of cannabidiol (CBD) oil for debilitating epileptic condition or related illness. 

Tennessee

• Tennessee creates the Medical Cannabis Commission which will study laws and legislation pertaining to use the of medical cannabis. The commission will propose legislation on how to "best establish an effective, patient-focused medical cannabis program." 

Laws Related to Other Drugs

• New Jersey reclassifies possession of psilocybin as disorderly persons offense. 
• Hawaii requests the Department of Health convene a working group to examine the medicinal therapeutic effects of psilocybin and psilocin. 
• Maine removes from definition of drug trafficking the possession of specific weights and amounts of drugs. 
• Rhode Island reclassifies simple possession of 10g or less of a controlled substance in Schedules I, II, III, IV, V to a 2-year misdemeanor instead of a felony. 

Drug Testing

Arizona

Arizona requires drug and alcohol testing for school bus drivers. 

District of Columbia

Clarifies that the public schools shall not require volunteers to take a drug test, other than a test required because of a reasonable suspicion, and that paid employees of a partner organization working in a school shall not be required to take a test for marijuana, other than a test based on reasonable suspicion.

Defrauding a Drug Test

Iowa

Iowa creates the criminal offense of defrauding a drug or alcohol test.

Mississippi

Prohibits sale of urine for purposes of defrauding chemical test. 

New Hampshire

Prohibits the manufacture, sale, distribution, marketing, or possession of synthetic urine or urine additives and prohibits attempts to defeat a drug or alcohol test by using synthetic urine or urine additives. 

Updating your policy to ensure compliance with new and existing state laws

Employers should consult their legal counsel and review their workplace drug testing policy to ensure compliance with relevant state laws. Some questions to ask when reviewing your policy are:

How Does Your Policy Handle Marijuana?

• Is your policy on marijuana explicit and clear?
• Does your policy address pre-employment, random, probable cause, and post-accident testing?
• Does your state require your policy to include signs of impairment?
• Does your state require evidence of recent use?
• Does your state have different requirements for medical marijuana vs. recreational marijuana use?
• Are marijuana laws in your state changing?

How Orange Tree can help employers

Orange Tree can ensure that you are updated on the current and upcoming marijuana and other drug related legislation and the impact it can have on your workplace drug testing program.

Schedule a call to learn how we are helping employers today.

We recommend employers review and discuss with your legal counsel your organization’s policies and procedures to ensure continued compliance with the changing laws and regulations.