Marijuana Policy and QualityPro Standards
Major legislative changes are coming in 2020. While many states now have comprehensive laws regarding medical and recreational marijuana use, New York City and Nevada are the first places to pass legislation regarding pre-employment drug testing in conjunction with their marijuana laws. Because of the drug-free workplace standard, the ability to test employees for marijuana use is a concern for accredited companies. We’d like to take this opportunity to clarify the situation as it currently stands. In short, the QualityPro drug-free workplace standard still applies as-written, though employers should be aware of the changing laws. QualityPro will continue to keep you, and the model drug-free workplace policy, updated as-needed moving forward.
Leading the movement away from pre-hire drug screening for marijuana are Nevada and New York City. The differences between the two policies are slight but distinct enough to bear looking into in more detail. In June, Nevada became the first state to put a law on the books fully outlawing refusing to hire a prospective employee because of the presence of marijuana in the results of a screening. The law as it stands now (to take effect January 1, 2020) does not forbid pre-hire drug screenings, but rather refusal to hire based solely on the appearance of marijuana. Once hired, if an employer requires a drug screening within the first thirty days, employees are permitted to submit to additional screening at their own expense to “rebut the results of the initial screening,” the results which their employer must accept and give proper consideration.
While the intent is clearly to remove consideration of extracurricular marijuana use from the hiring process, exceptions are presented to the above provisions in the case of a position that requires operating a motor vehicle, for which the state specifically requires screenings, or which, in the determination of the employer, “could adversely affect the safety of others”. Since pest management professionals may be expected to regularly operate motor vehicles and regularly run into situations where they have a direct impact on the safety of others, these are the exceptions within which QualityPro companies live.
New York City
New York City’s rules are a little more robust and take effect May 10, 2020. Rather than allowing for screening so long as it isn’t an instant disqualifier, New York City has prohibited pre-employment testing for marijuana altogether. The first action of its kind. "Prospective employers don't test for alcohol, so marijuana should be no different. But in no way does this bill justify individuals going to work under the influence," said Jumaane Williams, New York City's public advocate and the legislation's sponsor. This comparison between marijuana and alcohol is something we’ll explore later. As with Nevada’s law, New York City allows for exceptions to the no-screening rule in cases of positions having a significant impact on health or safety to be identified by city administrative services. Specific exceptions listed so far include positions requiring construction safety training or OSHA certifications under New York law.
Both of these policies go into effect in 2020, and companies operating in or out of Nevada and NYC must ensure compliance with these regulations by then. The prevailing attitude leans towards treating marijuana like alcohol, insofar as there is no pre-hire testing for alcohol in prospective employees but turning up for work under the influence will get someone fired. In the same way, neither of these laws prevent employee drug screening post-employment, and in fact both allow for screenings to be requested after a conditional job offer has been extended, so long as the appearance of marijuana on the test doesn’t constitute the only reason for not hiring someone. This also does not mean that the presence of other drugs in the results of a pre-employment screening are not still just as disqualifying now as they have been.
Complicating a situation already very much in flux are the different means of legally acquiring and using marijuana in the thirty-three states that currently allow its use. Those with medical marijuana licenses are legally able and medically obliged to use marijuana, but in no case should this be construed as a requirement that employers allow or accommodate the use of marijuana on the job. In most cases, unless otherwise noted, the rules of common sense still apply and employers with reasonable suspicion training can manage employees according to the company's drug free workplace policy.
Our Suggested Path Forward
So, having covered what the laws say, and what the situation in 2020 will be, what is the best next step forward?
QualityPro is currently working with the National Pest Management Association’s public policy arm to contact state and local government regulators and clarify our position. In cases where it is not already, we’re working to ensure that pest management is universally considered a position “having significant impact on health or safety” and generating resources to help companies communicate that point to their representatives. A generic letter to use either in whole or part as a jumping-off point will run in the next issue of PestWorld magazine and we will include it in the toolkit at QualityProTools.org. Other resources we intend to place at your disposal include QualityPro's webinar “Employee Drug Testing in the Age of Marijuana Legalization”—a comprehensive look at best practices for employers in the uncertain near-future.
In the meantime, while the legal landscape is changing, the QualityPro Standards are not. As a QualityPro Employer, you are still expected to enforce a written drug-free workplace policy requiring “pre-employment drug testing of prospective employees who have been offered a position”, emphasis added. As of yet, QualityPro’s standards are in full compliance with these laws, and we will be watching carefully as the situation develops. QualityPro’s standards require written statements clarifying what your individual company’s drug-free workplace policies are, and a clear delineation of the consequences for noncompliance up to and including termination, and while the standards make no exception for the use of marijuana by candidates for positions, (specifically that a test showing a positive result for marijuana will be considered a positive drug test and be treated “in accordance with all other positive drug tests”), the standards do not specify that you refuse to hire a candidate based solely on this test, and in fact require that your statement regarding marijuana policy include a disclaimer that the policy stands “unless a state or federal regulation requires otherwise”.
While these landmark decisions indicate changing attitudes and social mores, it’s important to know that the high standards of excellence QualityPro accredited companies are required to adhere to have not changed. QualityPro stipulates that all workplace drug policies be put clearly in writing because clarity, consistency, and common sense remain the best practices in our industry and your best defense if one is needed.