As we discussed in our recent article, Weed and Weapons: Workplace Challenges Based
on New Laws, recent state legislative enactments have expanded the scope of
marijuana use for medicinal and recreational purposes. As a result, we can all expect the use of
marijuana will greatly increase across the country. These legislative developments have also led
to increased uncertainty over whether and when an employer can test an employee
for suspected marijuana use. Further, despite the fact that marijuana remains
illegal under Federal law, employers are subject to the whims of each
individual state’s marijuana laws.
This article addresses an employer’s ability to conduct two
forms of drug testing: (1) post-accident testing; and (2) reasonable suspicion
testing. We address these two forms of testing, because while employers are generally
permitted to conduct pre-employment drug screens for illegal drugs, an
employer’s uncertainty generally arises when a current employee has been
involved in an accident or exhibits behavior that indicates impairment.
By:Mark A. Lies, II, is a partner with the law firm of Seyfarth Shaw LLP & Kerry M. Mohan is an associate with Seyfarth Shaw
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