1001 Old Cassatt Road, Suite 306, Berwyn, PA 19312

(610) 710-4510
(610) 710-4520

Disclaimer

Medical/Recreational Marijuana, Controlled Substance and Alcohol Testing Employment Issues

SWB assists employers in navigating the evolving landscape of marijuana laws in Pennsylvania, New Jersey and New York, as our clients seek to maintain safe workplaces and responsible workplace policies while complying with applicable law.

In Pennsylvania, we provide guidance on the Pennsylvania Medical Marijuana Act (“PMMA”), helping employers understand their obligations regarding employees who are registered medical marijuana users and advising on issues related to workplace drug policies and accommodations. We advise our public and private employer clients on the challenges of determining impairment of marijuana in the workplace and establishing appropriate disclosure and testing procedures for employees who are registered medical marijuana users.  

In New Jersey, we counsel employers on the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“CREAMMA”), which legalized recreational cannabis use. Our firm helps clients manage compliance with the anti-discrimination provisions of CREAMMA, while monitoring the activities of the New Jersey Cannabis Regulatory Commission (“CRC”) to stay abreast of changes in cannabis regulations. In doing so, we counsel our clients on the expansion of the definition of what constitutes a drug test for cannabis in terms of scientifically reliable testing methods such as SAMHSA certified-lab processing of samples from donors, chain of custody procedures and compliance with United States Department of Transportation (“DOT”) protocols, along with the meaning of a Workplace Impairment Recognition Expert (“WIRE”) and interim methods for determining whether reasonable suspicion exists to conclude that an employee is impaired within the meaning of the law pending the CRC’s issuance of regulations on CREAMMA’s WIRE provisions.

In New York, we counsel employers on the Marihuana Regulation and Taxation Act (“MRTA”), which legalized recreational cannabis use, and regulatory guidance issued by the New York State Department of Labor which explicitly prohibits pre-employment testing for cannabis.  Relatedly, we represent our clients in matters involving controlled substances and alcohol use and testing.  In this regard, we draft policies on the use of and testing for controlled substances (defined as such under the federal Controlled Substances Act). 

We also represent our clients in proceedings in which positive drug test results are challenged.  These challenges arise due to the circumstances under which employees may be pre-employment tested for controlled substances or alcohol, whether an employee selected to provide a specimen for a drug test refused to provide a specimen or refused to cooperate with the testing process, claims regarding the collection procedures such as observed specimens or allegations of specimen alteration or a “cold sample” by a donor, claims of false positives due to the specimen donor’s alleged ingestion of a prescription or over-the-counter medications or food, claims related to whether reasonable suspicion of impairment within the meaning of a particular policy existed, or whether an incident in a manufacturing or production facility or at a construction site constituted an accident for purposes of post-accident testing under a testing policy.