A federal court in Indiana dismissed the disability discrimination and retaliation claims of a DOT-regulated driver who failed a random drug test due to prescription opioid use, holding that he did not sufficiently adhere to the employer’s policy or DOT regulations when he failed to produce a Safety Concern Letter from the prescribing physician.  Ross v. FedEx Freight, No. 1:20-cv-00642-JMS-MJD (S.D. Ind. September 21, 2021).

The driver was prescribed pain medication in 2014 following a dental procedure.  At that time, pursuant to the employer’s policy and DOT regulations, the driver disclosed the prescription to the employer and provided documentation of the prescription.  The driver then was instructed to take a day off from work if he needed to take the pain medication.

DOT regulations also required that the driver regularly undergo DOT medical examinations and disclose, by way of Medical Examination Report Forms, the use of any medications which could negatively impact his ability to safely operate a vehicle.  Between 2016 and the time of his termination, the driver did not disclose the use of any prescription medication on his DOT Medical Examination Report Forms.

On March 30, 2019, the driver took the pain medication that was prescribed to him five years earlier.  The next day, on April 1, 2019, he tested positive for opioid use on a DOT-required random drug test.  Prior to taking the test, the driver disclosed to the medical review officer (“MRO”) that he had taken pain medication prescribed to him in 2014.  Pursuant to the employer’s policy and DOT regulations, the MRO directed the driver to provide a Safety Concern Letter from the driver’s prescribing physician which, among other things, would confirm that the medication should not pose a safety risk and that the driver’s use of the medication was being monitored by a medical professional.  However, the driver’s prescribing physician had since retired and physicians who continued to work in the practice would not provide such a letter because the medication was prescribed five years earlier.  As a result of the driver’s failure to provide the necessary documentation to support his use of a controlled substance, the employer terminated the driver.

In February 2020, the driver filed a federal action for, among other things, retaliation, disability discrimination, and failure to accommodate under the Americans With Disabilities Act, 42 U.S.C. § 12112, et seq.  The employer moved for summary judgement on all claims, arguing that the driver could not establish a prima facie case for disability or retaliation because, in part, the employee failed to adhere to the employer’s drug and alcohol testing policy.

The Court agreed with the employer, noting that the driver violated the employer’s policy and DOT regulations by “failing to provide a Safety Concern Letter addressing his use of the five-year-old prescription for opioids.”  Moreover, the driver never made any specific request for an accommodation.  With regard to the retaliation claim, the Court concluded that the driver could not establish that he engaged in any protected activity because he failed to disclose his use of pain medication on his DOT Medical Evaluation Report Forms for at least the prior three years.

Accordingly, the Court granted the employer’s motion for summary judgment in its entirety.

The U.S. Food and Drug Administration and the Centers for Disease Control and Prevention issued warnings to the public regarding the potential health risks of using Delta-8 THC products on September 14, 2021.

The FDA’s latest consumer update,  5 Things To Know About Delta-8 Tetrahydrocannabinol – Delta-8 THC, begins with a warning in large red letters: “DELTA-8 THC HAS SERIOUS HEALTH RISKS.”  The CDC’s Health Alert Network’s latest Health Advisory, Increases in Availability of Cannabis Products Containing Delta-8 THC and Reported Cases of Adverse Events, is intended to warn the public about the increased availability of cannabis products containing delta-8 THC and the potential for adverse events.  Among other things, the FDA and CDC are warning the public about:

  • An uptick in adverse event reports to the FDA and the nation’s poison control centers related to delta-8 THC products, due to insufficient or misleading labeling as well as the mistaken belief that these products are non-psychoactive;
  • Marketing, including online marketing of products, that is appealing to children (gummies and other products may look like candy);
  • Concerns regarding contamination of delta-8 THC products due to methods of manufacturing.

Background Provided by the CDC and Dangers of Delta-8 THC

According to the CDC, marijuana refers to all parts of the plant Cannabis sativa L., including flower, seeds, and extracts with more than 0.3% delta-9 tetrahydrocannabinol (THC) by dry weight. Any part of the cannabis plant containing 0.3% or less THC by dry weight is defined as hemp (which was legalized by the 2018 Farm Bill).  The cannabis plant contains more than 100 cannabinoids, including THC, which is psychoactive (i.e., impairing or mind-altering) and causes a “high”.  CBD is another active cannabinoid found in the cannabis plant that is not psychoactive and does not cause a “high”.

The term THC most often refers to delta-9 THC.  Delta-8 THC exists naturally in the cannabis plant in only small quantities and is estimated to be about 50-75% as psychoactive as delta-9 THC.  However, CBD can be synthetically converted into delta-8 THC through a chemical process. According to the FDA, after chemical alteration, the final delta-8 THC product may have potentially harmful by-products (contaminants) due to the chemicals used in the process, and there is uncertainty with respect to other potential contaminants that may be present or produced depending on the composition of the starting raw material. If consumed or inhaled, these chemicals can be harmful.

Delta-8 THC products are increasingly appearing in both marijuana and hemp marketplaces.  They are sometimes marketed as “weed light” or “diet weed.”  A wide variety of delta-8 THC-containing products have entered the marketplace, including, but not limited to, vapes, smokable hemp sprayed with delta-8 THC extract, distillates, tinctures, gummies, chocolates, and infused beverages.

The CDC states that the health effects of delta-8 THC have not yet been researched extensively and are not well-understood. However, delta-8 THC is psychoactive and may have similar risks of impairment as delta-9 THC. As such, products that contain delta-8 THC but are labeled with only delta-9 THC content rather than with total THC content likely underestimate the psychoactive potential of these products for consumers. In addition, delta-8 THC products are sold by a wide range of businesses that sell hemp and therefore may be confused with hemp or CBD products that are not intoxicating. Consumers who use these products may therefore experience unexpected or increased THC intoxication.

FDA Has Not Evaluated or Approved Delta-8 THC Products

 The FDA has not yet evaluated or approved delta-8 THC products for safe use. Some of the FDA’s concerns include variability in product formulations and product labeling, other cannabinoid and terpene content, and variable delta-8 THC concentrations. Additionally, some of these products may be labeled simply as “hemp products,” which may mislead consumers who associate “hemp” with “non-psychoactive.” The FDA also is concerned by the proliferation of products that contain delta-8 THC and are marketed for therapeutic or medical uses, although they have not been approved by the FDA. Selling unapproved products with unsubstantiated therapeutic claims is not only a violation of federal law, but also can put consumers at risk, as these products have not been proven to be safe or effective.

 FDA and CDC Have Received Adverse Event Reports Involving Delta-8 THC Products

From December 2020 through July 2021, the FDA received adverse event reports from both consumers and law enforcement describing 22 patients who consumed delta-8 THC products; of these, 14 presented to a hospital or emergency room for treatment following the ingestion. Of the 22 patients, 19 experienced adverse events after ingesting delta-8 THC-containing food products (e.g., brownies, gummies). Adverse events included vomiting, hallucinations, trouble standing, and loss of consciousness.

The FDA further reported that national poison control centers received 661 exposure cases of delta-8 THC products between January 2018 and July 31, 2021, 660 of which occurred between January 1, 2021, and July 31, 2021. Of the 661 exposure cases:

  • 41% involved unintentional exposure to delta-8 THC and 77% of these unintentional exposures affected pediatric patients less than 18 years of age.
  • 39% involved pediatric patients less than 18 years of age
  • 18% required hospitalizations, including children who required intensive care unit (ICU) admission following exposure to these products.

The CDC states that delta-8 THC intoxication can cause adverse effects similar to those observed during delta-9 THC intoxication and may include:

  • Lethargy
  • Uncoordinated movements and decreased psychomotor activity
  • Slurred speech
  • Increased heart rate progressing to slowed heart rate
  • Low blood pressure
  • Difficulty breathing
  • Sedation
  • Coma

The FDA states that it is actively working with federal and state partners to further address the concerns related to delta-8 THC products and is monitoring the market for product complaints, adverse events, and other emerging cannabis-derived products of potential concern.

Employers who are regulated by the U.S. Department of Transportation and their service agents (collectors, laboratories and Medical Review Officers) must ensure that they use the revised Federal Custody and Control Form (“CCF”) as of August 30, 2021.  The revised CCF can be viewed here.  Last year, the Office of Management and Budget approved the revised CCF but allowed use of the old form to continue through August 29, 2021.

Most of the changes in the revised CCF were made to accommodate the use of oral fluid specimens for Federal drug testing.  However, oral fluid drug testing has not yet been authorized for DOT-mandated drug testing.

If the old CCF is inadvertently used on or after August 30, 2021, it is a “correctable flaw” that requires the preparation of a Memorandum For the Record (“MFR”).  Under DOT regulation 49 CFR § 40.205(b)(2):

If the problem is the use of a non-Federal form or an expired Federal form, you must provide a signed statement (i.e., a memorandum for the record). It must state that the incorrect form contains all the information needed for a valid DOT drug test, and that the incorrect form was used inadvertently or as the only means of conducting a test, in circumstances beyond your control. The statement must also list the steps you have taken to prevent future use of non-Federal forms or expired Federal forms for DOT tests. For this flaw to be corrected, the test of the specimen must have occurred at a HHS-certified laboratory where it was tested consistent with the requirements of this part. You must supply this information on the same business day on which you are notified of the problem, transmitting it by fax or courier.

If the correction does not take place, the MRO is required to cancel the test.  49 CFR § 40.205(c).

DOT-regulated employers should consult with their drug testing vendors to ensure that the revised Federal CCF will be utilized on and after August 30, 2021.

The New Jersey Cannabis Regulatory Commission (the “Commission”) published the first set of rules and regulations on August 19, 2021 governing recreational cannabis use in New Jersey (“Personal-Use Cannabis Rules”) under the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”).  Those regulations do not include standards for employers to utilize a Workplace Impairment Recognition Expert prior to conducting marijuana drug testing.

Marijuana was legalized for recreational purposes in New Jersey in February 2021.  (See our earlier blog post here).  Under CREAMMA, adult use of marijuana is legal and New Jersey employees are afforded certain protections with regard to off-duty use.  While employers are permitted to test for marijuana under certain circumstances, the CREAMMA imposes a new requirement that work-related marijuana testing include a physical examination conducted by an expert – a Workplace Impairment Recognition Expert (“WIRE”) – trained to recognize drug impairment.  CREAMMA further directs the Commission to establish a certification program for those experts.

The Commission’s 160-page Personal-Use Cannabis Rules largely address the cannabis industry and remain virtually silent as to employer drug testing.  However, the Personal-Use Rules do temporarily waive CREAMMA’s “physical examination” requirement until the Commission, in consultation with the Police Training Commission, “develops standards for a Workplace Impairment Recognition Expert certification.”  § 17:30-2.1 (e) of the Personal-Use Cannabis Rules.  Until then, employers are not required to conduct a physical evaluation of an employee for drug testing purposes.

The Commission did not indicate how long it will take to develop the certification standards or when employers can expect regulations addressing marijuana testing.  In the meantime, New Jersey employers who test or wish to test applicants and employees for marijuana use should consult with  counsel to review their drug testing policies and procedures.

The Pennsylvania Superior Court has found, as a matter of first impression, that medical marijuana users may maintain a private action under the Pennsylvania Medical Marijuana Act (MMA), including a wrongful discharge action.  See Scranton Quincy Clinic Company, LLC, et al. v. Pamela Palmiter, Case No. 498 MDA 2020 (Pa. Super. Ct. Aug. 5, 2021).  As we previously discussed in our summary of the trial court’s decision, the MMA expressly prohibits employers from discharging, or otherwise discriminating or retaliating against an employee solely on the basis  of the employee’s status as an individual who is certified to use medical marijuana. However, it does not create an express private right of action.

The Court determined that the General Assembly “proclaimed a public policy” prohibiting employers from discriminating against medical marijuana users. Adopting the trial court’s reasoning, the Court further found an implied right under a three-part analysis: (1) whether the plaintiff is one of the class for whose “especial” benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, to create or deny such a remedy; and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a cause of action.

The Court also affirmed the trial court’s finding that the MMA can support a claim for wrongful discharge, explaining that the MMA does not provide statutory remedies for aggrieved employees through its administrative enforcement provisions, but the MMA evinces a clear public policy against termination of employment based on medical marijuana use off company premises.

In light of the Court’s decision, Pennsylvania employers should exercise caution when taking adverse action against medical marijuana users.

Registered and authorized patients of medical cannabis in Puerto Rico are considered a protected category for purposes of all employment laws under an amendment to the “Act to Manage the Study, Development and Investigation of Cannabis for Innovation, Applicable Norms and Limitations” signed by Governor Pedro R. Pierluisi on July 29, 2021.   The law took effect immediately.

Under the amendment, Puerto Rico Law 15-2021, employers may not discriminate against registered and authorized patients of medical cannabis in the recruitment, hiring, designation, or termination process or when imposing disciplinary actions.

Exceptions

The provisions of Law 15-2021 will not protect registered and authorized patients of medical cannabis if the employer can establish, by a preponderance of evidence, that:

  1. The use of medical cannabis represents a real threat of harm or danger to others or property;
  2. The use of medical cannabis interferes with the employee’s performance and functions;
  3. Permitting the use of medical cannabis would expose the employer to the risk of losing any license, permit, or certification related to any federal law, regulation, program, or fund; or
  4. The registered and authorized patient made use of or possess medical cannabis during working time or in the workplace without the employer’s written authorization.

Employers’ Protections for Hiring Medical Cannabis Patients

Law 15-2021 protects employers that hire registered and authorized medical cannabis patients from being penalized or denied a contract, license, permit, certification, benefits, or funds under the laws of the Commonwealth of Puerto Rico.

Implications

The provisions of Law 15-2021 are to be interpreted liberally in favor of the registered and authorized patients of medical cannabis.

Further, the Medical Cannabis Regulatory Board and the Department of Labor and Human Resources must adopt any regulations or administrative measures to ensure the effective implementation of Law 15-2021 by October 27, 2021.

Employers should revise their drug testing and discrimination policies to comply with Law 15-2021.

An employer’s failure to notify an employee of the cost of a confirmatory re-test of his original drug test specimen is a violation of the Iowa drug testing law.  Woods v. Charles Gabus Ford, Inc., Case No. 19-0002 (Iowa June 25, 2021).

The Iowa drug testing statute imposes many requirements on employers, including an obligation to notify current employees of confirmed positive test results. The notice must be provided in writing, by certified mail, return receipt requested, and it must inform the employee of the right to request a confirmatory retest of the sample as well as the cost imposed on the employee for the retest (different notice obligations are required for applicants).

In Woods, the employer terminated an employee for testing positive on an employer-required random drug test. The employer sent a letter to the employee informing him of the results of the drug test, his right to request a confirmatory retest, and that he would have to pay for a confirmatory retest. The employer did not specify the cost of the retest (which should be consistent with the employer’s cost for conducting the initial confirmatory test). The employer sent the letter via certified mail, without return receipt requested. The employee filed suit, alleging the employer failed to substantially comply with the notice provisions of the statute.

The Court explained that the “ultimate question” was whether the letter provided notice of the positive test result and a meaningful opportunity to consider whether to request a confirmatory retest.  Under this standard, the employer’s failure to specify the cost of the retest violated the statute. The Court reasoned that the cost of a retest is “vital information for making an informed decision.” It made no difference that the employee testified he might not have asked for a retest had he been informed of the cost – he was aggrieved under the statute because he could not make an informed decision.

As to the employer’s failure to send the letter return receipt requested, the court stated that there was no persuasive distinction between sending mail return receipt requested and sending it by certified mail. Rather, both conveyed the serious nature of the letter, and therefore sending the letter by certified mail substantially complied with the requirements of the Iowa drug testing law.

The Court also reasoned that back pay was appropriate because there was no way to know what the outcome of the retest would have been. The Court also remanded the case for a determination about whether front pay would be appropriate as well.

This case serves as another reminder that Iowa employers must strictly comply with the technical requirements of the state’s drug testing statute.

Consistent with legislative trends, Virginia weighed in further on the nationwide marijuana debate by enacting two new comprehensive cannabis-related laws. The first prohibits discipline for employee’s medical use of cannabis oil. The second is an omnibus bill permitting all individuals over the age of 21 to lawfully possess recreational marijuana. All provisions go into effect on July 1, 2021.

Background

After years of silence in the marijuana debate, in 2020, Virginia decriminalized simple marijuana possession offenses and prohibited employers from requiring job applicants to disclose past charges for marijuana possession. In 2021, lawmakers extended protections to stop adverse employment actions against cannabis oil users and to legalize recreational marijuana.

Medical Use of Cannabis Oil

Cannabis oil users will have increased employment protections beginning July 1, 2021. New § 40.1-27.4 prohibits employers from discharging, disciplining, or discriminating against an employee for their lawful use of cannabis oil with a valid written certification issued by a doctor. These restrictions apply only to the medical use of cannabis oil, not medical marijuana.

The law explains that employers can still take adverse action against an employee for any work impairments caused by the use of cannabis oil and prohibit possession of cannabis oil during work hours. The scope of this exception is not yet known. Although cannabis oil was previously authorized by Virginia lawmakers to treat a medical condition, the new law provides no new guidance as to whether employers must allow an employee to use cannabis oil during work hours if offered by a doctor as a reasonable accommodation for an employee’s disability or if the use of cannabis oil during work hours is unreasonable per se.

Additionally, the law states that nothing in this provision requires employers to commit any act in violation of federal law or that would lead to the loss of a federal contract or federal funding. This may mean that federal contractors who must comply with drug-free workplace laws are exempt from this provision. The law also does not require any defense industrial base sector employer or prospective employer to hire or retain any applicant or employee who tests positive for THC in excess of 50 ng/ml for a urine test or 10 pg/mg for a hair test.

Recreational Marijuana Legalization Includes Expanded Expungement

Governor Northam signed into law S.B. 1406 to allow adults over the age of 21 to possess one ounce of marijuana under Virginia law starting July 1, 2021. The legislation establishes the Virginia Cannabis Control Authority to legalize, tax, and regulate recreational marijuana use.

The new law also makes fundamental changes to expungement rules related to past marijuana convictions. Previously, the only offenses eligible for expungement were acquittals, certain dismissals, and charges formally not pursued by prosecutors. As a result of this new legislation, all misdemeanor violations are expunged and the Virginia State Police is directed to determine no later than July 1, 2025, which marijuana-related offenses will be automatically expunged from the state’s record. Felony marijuana charges are also implicated by the new law. Any person can petition to expunge a felony marijuana conviction, and, if successful, the conviction is permanently erased. An employer cannot then require an applicant to answer any question related to any arrest, criminal charge, conviction, or civil offense that has been expunged.

The law also limits the dissemination of information related to marijuana offenses. Private employers that are not subject to federal laws or regulations in the hiring process cannot require in any application, interview, or otherwise an applicant to disclose information when the record is not open for public inspection.

This law does not stop employers from prohibiting marijuana in the workplace.  But employers should consider how they want to message their expectations to their workforce considering the swirling — and often contradictory — information and messages regarding cannabis use and the workplace.

Connecticut has become the 19th state to legalize recreational marijuana use by adults.

Governor Ned Lamont signed the Act Concerning Responsible and Equitable Regulation of Adult-use Cannabis on June 22, 2021. Connecticut will permit individuals 21 years of age and older to possess and use recreational cannabis. Individuals cannot possess more than 1.5 ounces on their person or more than 5 ounces in a locked container in their home or in a locked glove box or trunk of a motor vehicle.

Provisions regarding lawful possession go into effect July 1, 2021, but the provisions affecting employers will take effect next year on July 1, 2022.

Provisions Affecting Employers

Under the new law:

  • Employers can maintain a drug-free workplace and implement policies prohibiting the possession, use, or other consumption of cannabis by an employee, subject to certain exceptions, including existing protections for qualified patients under the state’s medicinal marijuana law. Employers must put such policies in writing and make them available to employees and prospective employees.
  • Employers generally cannot discharge or take adverse action against an employee because the employee uses cannabis outside of the workplace, unless an employer has a disseminated policy. There are certain exceptions. Further, employers should be mindful of Connecticut’s existing laws limiting drug testing of current employees.
  • Employers generally cannot discharge, refuse to hire, or otherwise take adverse employment action against an employee or prospective employee based on the individual’s cannabis usage outside of the workplace before such employee or prospective employee became employed, unless doing so would cause an employer to violate a federal contract or lose federal funding.
  • Employers can still take appropriate employment action based on reasonable suspicion of an employee’s usage of cannabis while engaged in the performance of work or on call, or upon determining that an employee “manifests specific, articulable symptoms of drug impairment” while working or on call

that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including, but not limited to: (i) symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment [or] machinery, (ii) disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property, (iii) disruption of a production or manufacturing process, or (iv) carelessness that results in any injury to the employee or others.

  • Employers can take adverse employment actions based on positive marijuana drug test results when there is reasonable suspicion (as described above), or after a pre-employment drug test or random drug test (only as permitted by existing Connecticut law), when the employer has an established drug testing policy stating that a positive test result for marijuana may result in adverse employment action.
  • Certain employers can claim exemptions from some of the law’s employer prohibitions, including those in mining, utilities, construction, manufacturing, transportation/delivery, educational services, healthcare or social services, justice, public order and safety activities, and, national security and international affairs. The new law also provides carveouts for certain positions, including: firefighters, emergency medical technicians, police officers, positions requiring operation of a motor vehicle that requires drug testing under state or federal law, positions requiring certification of completion of a course in construction safety and health approved by the Occupational Safety and Health Administration, positions requiring a federal Department or Defense or Department of Energy national security clearance, positions requiring supervision or care of children, medical patients or vulnerable persons, positions for which the law would conflict with federal law, positions funded in whole or in part by a federal grant or if the provisions would otherwise conflict with an employment contract or collective bargaining agreement, positions with the potential to adversely impact the health or safety of employees or members of the public, in the determination of the employer, and positions at a nonprofit organization or corporation, the primary purpose of which is to discourage use of cannabis products or any other drug by the general public.
  • The drug testing provisions of the law do not apply to employers who are required to conduct drug testing pursuant to: (1) U.S. Department of Transportation regulations; (2) a federal contract or grant as a condition of receiving the contract or grant; (3) federal or state laws that require drug testing for safety or security purposes; or (4) a valid collective bargaining agreement that addresses drug testing of applicants, conditions of hiring, or conditions of continued employment for applicants.
  • The employment-related provisions of the law do not apply to the privileges, qualifications, credentialing, review, or discipline of nonemployee, licensed healthcare professionals on the medical staff of a hospital or other medical organization.
  • Individuals aggrieved by employer violations of the law may bring a private right of action, although there are certain defenses available to employers.

Next Steps for Employers

Employers should consider carefully how the new law affects their existing drug testing procedures and hiring processes. Employers also should review existing policies to ensure compliance and to maximize flexibility afforded to employers. Employers that engage in drug testing should revisit reasonable suspicion training and manager training to ensure compliance.

Montana Governor Greg Gianforte signed legislation on May 18, 2021 that will provide protections for off-duty use of marijuana starting on January 1, 2022.

Montana citizens voted to legalize recreational marijuana in November 2020. The ballot initiative did not provide employment-related protections and focused on employer restrictions of on-duty use of the drug.  The newly-signed recreational marijuana law still permits employers to take action based on the use of marijuana while working. Specifically, the law does not:

  • Require employers to permit or accommodate recreational marijuana use (or other conduct permitted by the recreational marijuana law) in any workplace or on the employer’s property;
  • Prohibit an employer from disciplining an employee for violation of a workplace drug policy or for working while intoxicated by marijuana or marijuana products;
  • Prevent an employer from declining to hire, discharging, disciplining, or otherwise taking adverse employment against an individual because of the individual’s violation of a workplace drug policy or intoxication by marijuana or marijuana products while working;
  • Prohibit an employer from including in any contract a provision prohibiting the use of marijuana for a debilitating medical condition; or
  • Permit a cause of action against an employer under the State’s wrongful discharge or freedom from discrimination law.

However, employers should take note that the new bill also amended the lawful off-duty conduct statute. As revised, marijuana will be considered a “lawful product” under the law and employers may not refuse to hire or discriminate against an individual with respect to compensation, promotion, or the terms, conditions or privileges of employment because the individually legally uses marijuana off the employer’s premises during nonworking hours.

Notwithstanding the above restrictions, an employer can take action based on off-duty marijuana use if:

  • The use of marijuana affects in any manner an individual’s ability to perform job-related employment responsibilities or the safety of other employees;
  • The use of marijuana conflicts with a bona fide occupational qualification that is reasonably related to the individual’s employment;
  • An individual has a professional services contract with an employer (on a personal basis) and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products;
  • The employer is a nonprofit organization that, as one of its primary purposes or objectives discourages the use of marijuana by the general public; or
  • The employer acts based on the belief that its actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.

For employers with drug testing programs, it may be difficult to take adverse employment actions for positive marijuana test results, particularly for pre-employment and random drug tests. In addition, the law does not define “intoxication.” Moreover, Montana has a restrictive drug testing statute that limits the categories of employees who can be subjected to employer drug testing in the first place.

Montana employers are encouraged to review their policies regarding marijuana and drug testing before the law takes effect on January 1, 2022.