Marijuana Legislation: An Update

As part of QualityPro’s ongoing standards, effort to keep our accredited companies, standards and resources as up-to-date on evolving issues as possible, we wanted to check in on where marijuana legislation stands at the state level. Individual states are evolving their own legislation and we wanted to provide an update. Because of the drug-free workplace standard, the ability to test employees for marijuana use is a concern for accredited companies. While the QualityPro drug-free workplace standard still applies as-written employers should be aware of the changing laws. QualityPro will continue to keep you, and the model drug-free workplace policy, updated as-needed moving forward.

THE STATE OF THE STATES

Currently, six states are on our radar as far as having legislation we’d like to either see clarified or revisited. New Mexico, New Jersey and Oklahoma all have protections on the books for medical marijuana usage, and Nevada, New York City and now Maine all have protections for recreational use as well as medical. As with New York City and Nevada’s legislation, most of these states have a provision in the law for, as Nevada’s specific language reads, prospective employees applying for positions “that, in the determination of the employer, could adversely affect the safety of others.” For reasons that feel intuitive, it’s QualityPro and NPMA’s firm conviction that technicians providing pest management services, driving vehicles and applying chemicals are doing work where safety is on the line. There is enough potential for adversely affecting the safety of others if they are doing so while impaired that the QualityPro standard regarding pre-employment drug testing remains in place as-written.

The prevailing attitude leans towards treating marijuana like alcohol, insofar as there is no pre-hire testing for alcohol in prospective employees, but turning up for work under the influence will get someone fired. In the same way, none of these laws prevent employee drug screening post-employment—in fact some do allow for screenings to be requested after a conditional job offer has been extended. The essence of most legislation is that the appearance of marijuana on a drug test cannot be the only reason for not hiring someone. The presence of other drugs in the results of a pre-employment screening are just as disqualifying now as they have been.

Where this becomes a concern is in specific cases like the ordinances in New York City and the legislation currently rolling out in Maine.

SPECIFIC EXCEPTIONS

We’ve discussed New York City’s pre-hiring regulations before, but as a brief overview, it will become unlawful to require pre-hire drug screening for employees of any kind in 2020. The rule explicitly forbids testing before hiring except in very specific cases—jobs that pose a significant risk to health or safety to be identified by city administrative services. NPMA is working towards pest management being recognized as one of these jobs, and updates on that front will be forthcoming. In the meantime, the law does not forbid post-hire screening, or firing based on the results of drug tests.

Maine has put forward similar legislation whereby employers are not required to permit marijuana in the workplace, and are not prohibited from disciplining employees for using marijuana “in the workplace or while otherwise engaged in activities within the course and scope of employment,” which is fully in line with QualityPro’s standards. The new law removes a prior law’s prohibition on employers taking disciplinary action against employees using marijuana in their off-hours. Where the concern arises for us is the fact that any pre-hire drug-screening plan must be approved by the Maine Department of Labor, somewhat removing the power to determine hiring policy from employers and making it trickier to maintain compliance with QualityPro’s standards. As with New York City and Nevada, NPMA is working to make sure the Maine Department of Labor is aware of the need for screening in the employment process as a means of protecting the public good.

WHAT IS QUALITYPRO DOING?

QualityPro is working with the National Pest Management Association’s public policy arm to contact state legislatures and clarify our position. In cases where it is not already, we’re working to ensure that pest management is universally considered a position “having significant impact on health or safety,” and generating resources to help companies communicate that point to their representatives. A generic letter to use will be included in the toolkit at QualityProTools.org.

In the meantime, while the legal landscape is changing, the QualityPro Standards are not. As a QualityPro employer, you are still expected to enforce a written drug-free workplace policy requiring “pre-employment drug testing of prospective employees who have been offered a position.” Unless otherwise noted, QualityPro’s standards are still in line with these legislations. QualityPro’s standards require your individual company to have a drug-free workplace policy and a clear delineation of the consequences for noncompliance up to, and including, termination. While the standards make no exception for the use of marijuana by candidates for positions, (specifically that a test showing a positive result for marijuana will be considered a positive drug test and be treated “in accordance with all other positive drug tests”), the standards do not specify that you refuse to hire a candidate based solely on this test. We recommend companies have their policies reviewed by an HR expert at least annually. Seay Management Consultants offers a discount to NPMA members for this type of work.

While these landmark decisions indicate changing attitudes and social mores, it’s important to know that the high standards of excellence QualityPro accredited companies are required to adhere to have not changed. As always, put your policies clearly in writing and document your HR-related activities. Clarity, consistency and common sense remain the best practices in our industry and safety is paramount to what we do. To this end, QualityPro and NPMA are planning a Safety Summit in 2020. If you are interested in learning more, e-mail qualitypro@pestworld.org.

BY GRIFFIN VOLTMANN, CERTIFICATION MANAGER, QUALITYPRO