New York City’s recent ban on pre-employment marijuana testing, coupled with recent decisions in New Jersey and Connecticut, could give manufacturers cause for concern.  Effective May 20, 2020, New York City employers will no longer be allowed to require pre-employment marijuana testing for most jobs, testing which historically has been a routine part of the onboarding and hiring process.  The law exempts from coverage certain jobs, such as law enforcement officials, police officers, those charged with the care or supervision of children, and so on.  Interestingly, the law is silent on mandatory drug testing after employment begins.

A majority of states, 32 at last count, have legalized the use of medical marijuana and 11 states have made recreational marijuana legal as well.  The rapid adoption of statutes legalizing marijuana mirrors the growing public support for legalization.  One poll shows that 80% of the public support legalization of medical marijuana and 60% support legalization of recreational marijuana.  See Locke Lord LLP, “The ABC’s of the Marijuana Industry Today,” 2019 WLNR 14886903 (May 14, 2019).  While public support may be growing at a fast pace, the law in this area is lagging far behind, creating potential pitfalls for manufacturers seeking to ensure workplace safety and productivity.

Notwithstanding this broad public acceptance of marijuana (and changes to state laws nationwide) the use, distribution, and possession of marijuana remains a crime on the federal level.  (The Obama Administration adopted a “hands-off” approach to prosecuting medical marijuana users.  The Trump Administration signaled a change in that approach although it has not yet manifested.)

The New Jersey Appellate Court’s decision in Wild v. Carriage Funeral Holdings, Inc. should give manufacturers a reason for caution.  In that case, the court held that an employee who tested positive for marijuana could sue his employer for disability discrimination.  The court rejected the employer’s argument that its actions were lawful because the New Jersey medical marijuana law expressly stated: “Nothing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.”  In the court’s view, that sentence demonstrated a legislative intent for the law to be neutral in its impact.  An otherwise discriminatory act (penalizing an individual for using a prescribed drug to treat a covered medical condition) did not become more lawful because of the statute.

In 2018, a Federal Court in Connecticut issued a similar decision.  See Noffsinger v. SS Niantic Operating Co., 2018 WL 4224075 (D. CT 2018) (granting summary judgment for the plaintiff).

Further complicating the issue has been the growing popularity of marijuana alternatives, particularly Cannabidiol or CBD.  CBD, a close relative to tetrahydrocannabinol (THC, the active ingredient in marijuana), allegedly provides the same or greater health benefits without the psychotropic effects (the “high”) some get from using marijuana.  See Fisher Phillips, “The ABCs Of CBD For Employers,” 2019 WLNR 14205600 (May 8, 2019).

The pressure may be building.  Federal law currently prohibits the marketing of food or dietary supplements which contain CBD.  The FDA recently announced a May 31 public hearing on CBD, with comments being accepted until July 2019 (although the timing of the hearing may be up in the air).  The FDA will be looking to see whether federal standards should be changed to permit the advertising and sale of CBD supplements to the public.

How much worse can it get for manufacturers?  In November 2018, Denver citizens voted to decriminalize “Magic Mushrooms.”

Manufacturers may wish to review and potentially update their drug testing and drug use policies, hiring and onboarding procedures/policies, and internal guidelines related to drug testing.  Focusing on impairment while on the job, ensuring safety at work, and making sure policies are uniformly and consistently applied may be the best way to navigate the waters ahead.

A special thanks to my colleague, Abby Warren, who greatly contributed to this post.