Tina Maiolo and Colin Neal
The “Cans” and “Cants” of Cannabis Testing: Maryland, Washington, D.C., and West Virginia
While the marijuana legalization revolution has reached Washington D.C., Maryland, and West Virginia, the jurisdictions have varied frameworks for employer and employee protections and procedures for workplace drug testing. This post serves to supplement the blog post on Virginia’s new legal scheme workplace drug testing for cannabis, which is considerably more complex than the other jurisdictions in the region.
Unlike its neighbors to the south, Maryland has been slower to embrace the legalization of recreational marijuana and extend workplace protections for employees using medical marijuana pursuant to a valid certification. Under Maryland law, possession of only small amounts of marijuana is decriminalized. However, Maryland is placing a marijuana decriminalization bill on the November 2022 ballot for referendum. Though the bill expands the decriminalized possession limit from less than 10 grams to 1.5oz of marijuana, the bill does not address workplace testing for marijuana use. Further, medical marijuana is permitted via written certification where a doctor, pursuant to the medical standard of care, determines that the therapeutic use of cannabis has benefits outweighing potential risks.
Of the four jurisdictions discussed, Maryland provides the greatest breadth to employers to drug test and discipline prospective and current employees for the use of marijuana, even medicinally. Applicants and employees can be drug tested for any controlled substance—including medical marijuana—for any legitimate business purpose. This is a very employer-friendly standard. There are no carveouts for medical marijuana users, as in Virginia and West Virginia. Thus, if an employee with a valid medical marijuana certification uses marijuana away from work but still tests positive in a valid workplace drug test, that employee may be disciplined up to termination. In sum, Maryland provides virtually no protection from drug testing or discipline for employees who use marijuana.
By ballot referendum, the District of Columbia decriminalized the possession of marijuana up to two ounces by adults 21 or older effective February 2015. However, given the District’s unique relationship with the federal government, D.C. marijuana users can still be arrested by federal police enforcing the federal criminalization of cannabis. Nonetheless, D.C. has codified modest workplace drug testing protections for employees.
Around the same time as it decriminalized recreational marijuana, the District enacted §32-931, which bars marijuana drug testing for prospective employees until after a they have been extended a conditional offer of employment. The law is specific, however, that if a conditional employee tests positive for marijuana, the position may be denied. The law includes a carveout for federal employment contracts, consistent with the Federal Drug Free Workplace Act There is no codified protection in D.C. for employees who are certified medical marijuana users.
One major exception to the District’s otherwise minimal employee protections from workplace marijuana testing is for the D.C. government’s own workforce. As of September 2019, a mayoral order enacted by Mayor Bowser—which extends to roughly 30,000 employees under the Mayor’s purview—clarified and loosened drug testing policies for government workers, subject to their categorization as “safety sensitive,” “protection sensitive,” and “security sensitive.” Safety sensitive workers, which includes the Metropolitan Police Department and workers whose duty it is to operate vehicles, are not afforded any new protection from pre-employment or random marijuana screening. Protection sensitive workers, such as teachers or social workers, are no longer tested for cannabis, but may undergo a pre-employment drug test for other substances. Security sensitive employees are no longer drug tested at all.
The City Council is currently considering a bill styled as the Cannabis Employment Protections Amendment Act of 2022, which, if approved, would prohibit pre-employment testing for THC as a condition of employment for workers across the District. The bill excludes from protection a variety of occupations, including police officers, law enforcement officials, positions requiring a commercial driver’s license, construction jobs with occupational safety training, childcare workers, healthcare workers, and other occupations where the employee has the potential to have a significant impact on the health or safety of the public.
Importantly, employees of the federal government, roughly 200,000 of whom reside in the District, are not provided any protection from workplace marijuana screening and adverse employment action.
Unlike the other jurisdictions discussed, West Virginia has not legalized or decriminalized the use of recreational marijuana. However, medicinal marijuana is legal in the state, though its use and certification is greatly limited. In July 2017, West Virginia enacted the Medical Cannabis Act and the Safer Workplace Act, two laws which, in concert, provide great clarity for employer and employee rights with regard to workplace drug screening. In short, West Virginia provides protection from workplace discipline to employees validly certified to use medical marijuana, but otherwise provide great latitude to employers to drug test their employees without fear of legal retribution.
The Medical Cannabis Act decriminalized the use and possession of medical marijuana for enumerated serious medical conditions, including cancer, HIV/AIDS, and PTSD. The law also protects employees with valid medical marijuana certifications from adverse employment action. Employers are prohibited from taking disciplinary or otherwise adverse action against an employee solely on based upon that employee’s use of a medical cannabis. However, there is no requirement to make accommodations for the use of medical marijuana on job sites nor does the law protect the use of medical marijuana at work. Lastly, this law specifies that it does not require employers to take any action that would place them in violation of federal law. Notably, West Virginia’s federal law exception is written more broadly than similar federal contractor language in D.C. and Virginia’s federal contractor safe harbors.
The Safer Workplace Act, on the other hand, codifies the right of employers to screen applicants and employees for drug use, so long as the testing is conducted pursuant to a written and available drug testing policy. The law grants employers broad authority to define their own practices of drug testing employees, and even selecting whether to drug test at all. Employers may justify drug tests for any reason including drug abuse prevention and treatment, investigation of workplace impairment, accident investigation, deterring drug use at work, safety, and productivity. Further, the law codifies protections for employers for taking adverse action against employees who test positively, as well as choosing not to test or take adverse action.
While the Medical Cannabis Act provides protection to employees who are legally certified medical cannabis users, the Safer Workplace Act provides broad protections for employers, whether or not they choose to drug test or discipline drug-using employees.
These three jurisdictions have taken different paths towards loosening restrictions on the use of marijuana and their policies on drug screening in the workplace also varies greatly. Employers should apprise themselves of the drug testing policies in the jurisdiction(s) in which they operate, promulgate specific policies about drug screening and the rights of certified medical marijuana employees (when applicable), and strictly follow these policies to best avoid any legal conflict with their workers.