Employer Drug-Free Workplace Provisions. The Act continues certain fundamental employer prerogatives and rights, expressly providing:
- Workplace Use/Possession and Intoxication Can be Prohibited. The Act does not require employers to permit employees to use or possess marijuana or marijuana products during work hours or to work while under the influence.
- Driving Under the Influence or Impaired Not Permitted. The Act is not intended to allow driving under the influence of, or impaired by, cannabis or cannabis products, or supersede marijuana DUI/impairment laws.
- Drug-Free Workplace Obligations. The Act does not restrict or preempt legal obligations to maintain a “drug-free workplace” (laws prohibiting illegal activity in the workplace, but not mandating testing) and employers may be able to test if compliance would lead to a “provable adverse impact” under “requirements of a federal contract.”
Prohibited Employer Conduct Under the Act. The Act guts employer marijuana testing programs. Although testing is not prohibited, employers cannot refuse to hire any person or take adverse action against an employee solely because they use or test positive for cannabis. Although the Act cannot preempt federal law or regulation prohibiting the use of marijuana and mandating testing (e.g., under DOT rules), it prohibits employers from acting on the basis of a positive test result unless the tested individual both tests positive and prior to the test exhibited objective signs of impairment.