Courting Disaster: The Perils of Ignoring State Laws in Workplace Drug Testing
By Yvette Farnsworth Baker, Esq.
Current Consulting Group
A crucial aspect of workplace drug testing is grasping the ins and outs of state laws. Though they can be tricky, it’s abundantly possible to create a testing policy that ticks all the boxes of state statutes. But to those who brush off these laws, especially the newer laws around marijuana, it is a risky and foolish move. Employers face fines, lawsuits, and even criminal charges for not playing by the rules. And new laws in California and Washington require a little extra attention to be compliant.
What type of drug testing laws apply
Within the workplace drug testing industry, we often refer to state drug testing laws as “mandatory laws” or “voluntary laws.” There can also be laws such as laboratory licensing laws or marijuana laws that impact how, when, and where employers can drug test. The risk of noncompliance with state law depends a lot on what type of law impacts testing in that state.
Violating voluntary laws
Voluntary laws have the smallest risk of noncompliance, because, just as the name implies, compliance is optional. Voluntary state drug testing laws offer incentives for compliance, but any employer who is willing to opt out of those incentives is free to test however they want to. The incentive for compliance with voluntary drug testing laws is usually a discount on the employer’s worker’s compensation insurance premiums. Employers who don’t comply are simply not eligible for the discount, which may be the right decision when considering new alternative testing methods that save more money than one would realize through the premium discount.
Violating lab licensing laws
Laboratory licensing laws are next up in severity. Violating a lab licensing law would most often occur when an employer is conducting on-site point of collection testing when the state’s lab licensing law requires all testing to be conducted in a lab. Violating these regulations would most likely result in a fine and/or prohibition of on-site testing in the future.
Violating mandatory and marijuana laws
More serious breaches are violations of mandatory state drug testing laws or violations of marijuana laws.
Some mandatory state laws include a penalty for noncompliance in the law. In Minnesota, an employer who violates the state drug testing law is required to pay the attorney’s fees of an employee who pursues legal action.i In Maine, violation of the law renders the employer liable for an amount equal to three times lost wages, reinstatement of employee with full benefits, court costs, and reasonable attorney’s fees.ii In Vermont, an employer who knowingly violates the state drug testing law faces up to six months in jail.iii
Usually, however, the biggest risk of noncompliance is an expensive lawsuit that is costly to litigate and results in a judgment for lost wages to an employee or applicant who tested positive for drugs. Rewarding someone who tests positive for drugs with a big payout certainly adds insult to injury, yet it’s entirely possible if an employer is not conscientious in complying with state law.
Violating marijuana laws potentially poses a higher risk compared to other drug testing laws due to heightened public awareness surrounding them. There have been several lawsuits in recent years that have challenged firings based on marijuana positives.
Case study: Connecticut’s marijuana law and lawsuits
Connecticut offers us two useful court cases: one in which an employer did not comply with the state’s marijuana law and one in which the employer did comply with the state’s marijuana law.
Connecticut’s medical marijuana law does not allow an employer to refuse to hire, penalize, or fire a person based on their status as a medical marijuana patient. The law does allow employers to discipline an employee for being under the influence of intoxicating substances during work hours.iv We’ll examine two employers who chose opposite strategies in applying the state’s medical marijuana law in their workplace policies.
Employer’s policy violated state law
In 2016, an employer who operated a physical rehabilitation center in Connecticut interviewed the plaintiff Katelin Noffsinger for a position. Ms. Noffsinger was offered the job contingent on a background check and drug screen. She informed them at the interview that she used medical marijuana for treatment of PTSD. When her pre-employment drug test returned positive for THC, the employer rescinded the job offer. Their reasoning was that medical marijuana is not an approved prescription, and that the employer follows federal laws in which marijuana is still illegal.
Ms. Noffsinger sued the employer for violating the state marijuana law’s anti-discrimination provision. She won summary judgment against the employer. The court reasoned that the state’s medical marijuana law “protects a qualifying patient for the use of medical marijuana outside working hours and in the absence of any influence during working hours” and concluded that the employer broke that law in rescinding her job offer.v The employer had to pay Ms. Noffsinger compensatory damages.
Employer’s policy complied with state law
Contrast the Noffsinger case with a 2024 case in which the Connecticut Appellate Court upheld the firing of an employee for being impaired on the job from medical marijuana.
Ms. Bartolotta worked as a preschool teaching assistant and suffered from epilepsy. Her employer was aware that she suffered from epilepsy and had implemented a safety protocol in response. Her employer was not, however, aware that Ms. Bartolotta took medical marijuana as treatment.
One day at the school, Ms. Bartolotta called a student by the wrong name, and explained to a teacher that she was “just out of it” due to the medical marijuana she had taken the night before. After an investigation, Ms. Bartolotta admitted that she was impaired by medical marijuana at work. As a result, she was issued a drug test.
The employer fired Ms. Bartolotta for working while impaired by medical marijuana. Ms. Bartolotta sued the employer for violating the state’s marijuana law and the state’s mandatory drug testing law. The employer was granted summary judgment on all counts and Ms. Bartolotta received no payout.
The Court reasoned that the employer was very clear during the investigation that Ms. Bartolotta was under investigation for being impaired by marijuana at work, which was a safety risk to the children. She was not fired for her disability and was not refused accommodation for it. Because the employer had a workplace policy that complied with the state’s medical marijuana law, the court was confident that Ms. Bartolotta was fired for permissible reasons and that the employer did not violate the state’s marijuana law.vi
California, Washington, and more
As new and novel laws come into effect in California and Washington this year, employers may be tempted to ignore the details and continue testing as they always have. This can be a costly mistake. Marijuana users are becoming increasingly empowered and will be quick to seek out legal counsel for violation of their rights.
California and Washington’s latest laws favor marijuana testing that does not screen for non-psychoactive cannabis metabolites. Employers are limited in their ability to take adverse employment action based on test results that detect non-psychoactive cannabis metabolites. Testing that screens for the active parent drug of cannabis, however, as oral fluid testing does, is still permitted and can be the basis for employment action such as refusing to hire or firing an employee. Employers need to be informed about what testing methods they are using and adjust their policies to be fully compliant with these new laws.
Conclusion
Continued drug testing is not only possible in today’s climate, it is more important than ever. Employers do need to take steps, though, to be informed about their state laws and to make sure they are on solid legal footing in their practices. Legal defensibility should be an important consideration to all employers. Contact Buzzkill Labs anytime if you need help getting state law compliant.
i Minn. Stat. Ann. 181.956
ii Maine Rev. Stat. 26-7-3A-689
iii Vermont Stat. Ann. 21-519
iv Conn. Gen. Stat. 21a-408p(b)(3)
v Noffsinger v. SSC Niantic Operating Co., 338 F. Supp. 3d 78 (D. Conn. 2018)
vi Bartolotta v. Human Res. Agency of New Britain, AC 46091 (Conn. App. Ct. Mar. 19, 2024)
