New Rules for Drug Testing
Employers may continue to maintain drug-free workplaces, including prohibiting the possession and consumption of cannabis as well as intoxication during work hours. But an employer may only require an employee to undergo a “drug test” if:
(i) the employer reasonably suspects the employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
(ii) there are observable signs of intoxication related to usage of a cannabis item;
(iii) the drug test follows a work-related accident subject to investigation by the employer; or
(iv) the employer conducts random drug testing, requires drug testing as part of pre-employment screening, or requires drug testing as part of regular screening of employees to determine use during work hours.
Critically, a “drug test” is no longer a simple mechanical collection and lab test. The law now prohibits employers from taking any adverse action against an employee based solely on the presence of “cannabinoid metabolites” in the employee’s bodily fluids. In other words, a failed blood, urine, or saliva test is no longer sufficient grounds for discipline. Rather, employers must utilize a two-part “drug test” involving both (i) “scientifically reliable objective testing methods and procedures,” such as a blood, urine, or saliva test; and (ii) a physical evaluation conducted by an individual with necessary certification to opine on the employee’s state of impairment or lack thereof.
Certification for physical evaluation purposes will require an individual to successfully complete presently undefined “Workplace Impairment Recognition Expert” training based on standards issued by a commission that presently exists only on paper (or certain substitute training). It is unclear when the commission will begin its work and issue training standards, when training will become available, and what, if anything, employers may do in the interim to identify employees who are intoxicated in the workplace.