What if you have an employee that lives in one state and works in another? How does this work with legal medical or recreational marijuana?

Being a multi-state employer means dealing with employees who work in different states and dealing with different laws and regulations in each area. It can definitely be a headache at times, especially when dealing with drug testing and medical marijuana.

The list of things employers need to know in order to stay compliant can seem nearly endless at times: state laws, federal regulations, city-specific regulations, workers’ compensation laws, employment laws, etc. This is made even more difficult with the recent changes to marijuana legalization.

There is no ‘one-size-fits-all’ solution for staying compliant, but employers should work hard to stay on top of their drug testing policy and make sure it is up-to-date with regularly changing state and federal laws.

How Do Laws Work Together? What If I Have An Employee That Lives In One State And Works In Another?

Unfortunately, there is no governing case law that outlines which drug use and testing laws trump others.

However, employers may find it useful to study court cases that have dealt with conflicting state laws in order to help inform their decisions. One court case that may help provide some insight about competing state laws is Olsen v. Push, Inc.

In 2014 Olson v. Push, Inc., the District Court ruled that drug testing should conform with procedures and practices prescribed in the state where the employment takes place and not those of the state where an individual lives or applies for employment.

However, this initial decision was reversed and remanded back to the District Court in 2016 by the United States Court of Appeals.

While neither of these decisions is binding, this case may be useful for employers to review for guidance.

We also strongly recommend keeping detailed drug testing policies in your employee handbook. You should have additional sections for each regulated jurisdiction in which you have employees. Again, this is where specialized legal counsel would be very beneficial.

Ultimately, multi-state employers need to find a way to comply with the individual laws in each state which they do business. And if you have employees that are governed by federal laws related to drug testing, like DOT or NRC employees, you need to comply with those federal regulations as well.

What Laws Should Employers Be Aware Of?

There are a lot of unusual and almost “hidden” laws sometimes within drug testing. While we still highly recommend consulting an expert within your own areas of employment, here are a few unusual regulations that could be good to take note of.

• Boulder, Colorado: There are specific restrictive drug testing laws that only apply to employers who operate within Boulder city limits.
• California: No statute that specifically regulates drug testing in the private sector exists. However, there is case law that affects who can be tested and under what circumstances. Random drug testing is permitted for safety-sensitive positions. (Note: San Francisco is another city that has its own separate ordinances for employers)
• Connecticut: A drug testing friendly state, though its law places restrictions on random testing and requires reasonable suspicion for all other types of testing. Employers must give all prospective employees written notice at the time of application of their intent to conduct a drug test.
• Colorado: No comprehensive law regulating or prohibiting drug testing. (Note: Boulder has its own separate regulations)
• Delaware: No comprehensive law regulating or prohibiting drug testing. An employer may not discriminate against a person in hiring, termination, or any term or condition of employment based on the person’s status as a medical marijuana cardholder.
• Illinois: Effective January 1, 2020, the Cannabis Regulation and Tax Act provides broad workplace protections for employers specifically stating that nothing in the act prohibits an employer from adopting a reasonable zero-tolerance or drug-free workplace policy. Employers that choose to discipline employees for being under the influence or impaired by marijuana must give the employee a reasonable opportunity to contest the basis of the determination that the employee was under the influence or impaired. Additionally, disciplinary action based on the use of legal substances outside of work is prohibited.
• Louisiana: Very few restrictions on employers, but employers are required to take adverse action based on a positive drug test use certified laboratories and specific testing procedures.
• Maine: Very rigid laws for employers with limits on when tests can be done, strict policy and employee notification rules, as well as statutes that mean all drug testing policies must be approved by the state labor department.
• Massachusetts: This state does not have a drug testing statute, though there have been landmark legal decisions that have shaped how drug testing can be conducted. The state’s narrow privacy law also impacts workplace drug testing.
• Michigan: Employers are limited in pre-employment testing to job applicants in “test-designated” positions including those requiring a commercial driver’s license, individuals operating machinery or emergency vehicles, and those with law enforcement powers. Post-accident testing is limited to accidents which result in death or serious personal injury and arise out of five specific situations. 
• Nevada: Effective January 1, 2020, it will be prohibited to deny employment because of a positive marijuana test. Certain exceptions apply for fire fighters, emergency medical technicians, or where an employer determines that marijuana use could adversely affect the safety of others.
• New Jersey: Employees are protected by an anti-discrimination clause in the Medical Cannabis Act that prohibits employers from taking any adverse action against a registered qualifying patient solely based on the individual’s status as a legal marijuana user. Employers must provide notice to applicants and employees who test positive for cannabis that they have the right to provide a “legitimate medical explanation” for the positive result within three days.
• New York City, New York: Beginning May 2020, employers in New York City will be unable to test job applicants for marijuana. There are several exceptions including for police officers, commercial drivers, and employees dealing with the building code.
• San Francisco: Random testing is totally prohibited unless required by a federal law mandating drug testing. 
• Texas: No limits are placed on the right of private employers to adopt drug and alcohol testing for their employees. There are limits, however, for public (government) employees.
• Vermont: Restrictions placed on random drug testing.

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One of the biggest worries or impacts following marijuana’s legalization is the potential for high costs at employers’ expense. These costs can include higher worker’s compensation, more drug testing, and potential increased litigation costs. Current Compliance said that if even 1% of American small businesses have a marijuana-related court case each year, the cost to small businesses nationwide would be approximately 48 billion dollars annually.

Their survey also found that a large percentage of employers were confused as to whether they could still test for marijuana.

Yes! You can still test for marijuana. In fact, you should be!

As an employer you have the right to maintain a safe and drug-free workplace. With all of these changes in legislation, it is more important than ever before that employers protect themselves. The benefits and return on drug testing have withstood the test of time and will continue to help employers control and prevent liability costs.

If you have questions about drug testing or how you can improve your workplace program in order to protect your company, reach out to our drug testing department. You can reach them by phone or email: 888-919-8378 or mail@blueline-services.com.

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