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How Employers Drug Test Legally

Following last November’s election, 26 states now permit the use of marijuana in some form, ranging from medical marijuana in Florida, Ohio and Pennsylvania, to recreational use in California, Washington and Nevada.

What you may not know is some states also implemented their own new requirements for employee drug testing and screening.

Connecticut and Minnesota limit random drug testing to only those employees in safety-sensitive positions. Arizona, Arkansas, Connecticut, Louisiana, Maryland and other states require some form of confirmatory testing after an employee receives a positive test.

In Rhode Island, you must refer the employee to a substance abuse professional after a first failed test and can only terminate that individual for continued use following their treatment.

None of these state strictures apply to employees in certain safety-sensitve positions or those subject to federal safety laws, like profissional truck drivers.

The Occupational Safety and Health Administration also holds that its new anti-retaliation rule prohibits employers from implementing a blanket mandatory post-accident testing program

“In light of this new rule, you should evaluate your drug-testing policies to determine whether any changes may be necessary,” says attorney Steven L. Ferenczy of the law firm of Fisher Phillips.

One such change may be to limit post-incident testing to situations where drug use likely contributed to the incident, and for which the drug test can accurately identify that the worker’s impairment was caused by drug use.

Employers also may be able to require testing absent an injury, such as when there is a certain amount of property damage, Ferenczy points out.

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