Laws Surrounding Drug Testing Vary by State and Continue to Change


RCS Influencer Trent Cotney says employers should pay attention to how states are responding to new drug use laws.

As of the most recent election cycle, 26 states and the District of Columbia have permitted either recreational or medicinal use of marijuana. Contractors and employers will be faced with evaluating their drug policies and must be aware of what the courts have to say about the matter.

It’s important to remember that while states have legalized its use, marijuana is still illegal under federal law. This means that contractors working under a government contract or for a federal employer are prohibited from using marijuana in any way – even for medicinal purposes. This counts for both on-site use as well as off-site or at-home use.

While federal law makes it clear that an employee who fails a drug test while working under government contract or for a federal employer can be fired by the roofing contractor, the laws vary by state. Two issues up for continued discussion include handling employees who arrive at the job site under the influence of marijuana and the employer’s right to a zero-tolerance drug policy.  A number of states have upheld employers’ rights to implement and enforce zero-tolerance drug policies.

Safety at work and on the job is of utmost importance. Marijuana use can cause impairment of the user’s motor functions and that person should not be operating machinery, vehicles or other types of equipment that could put themselves and others at risk. There is not yet a method to determine if someone is currently under the influence of marijuana; testing only indicates whether marijuana was used over a certain time period, typically within the last 30 days.

Even though states have upheld the employer’s rights for disciplining employees who fail drug tests for marijuana use, employers should still be following how states continue to respond to the new recreational and medicinal use laws as this can change over time.

Trent Cotney is the founder of Trent Cotney, P.A. & Associates, specializing in construction law. See Trent’s full bio here.

Author’s note:  The information contained in this article is for general educational information only.  This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

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