Employer Drug-Testing Rules Clipped by Rhode Island Marijuana Legalization
Tags : Drug Testing
On May 25, 2022, Rhode Island Governor Daniel McKee signed into the law the Rhode Island Cannabis Act, which legalized recreational cannabis. As a result, Rhode Island has joined a small but growing minority of states that extend employment protections to employees who use marijuana during non-working hours. With certain exceptions discussed below, an employer's ability to take adverse action as a result of an applicant's or employee's positive drug screen for cannabis is likely significantly limited absent evidence of current impairment at the time of the test. Although employers are still expressly permitted to implement drug-use policies that prohibit employees from being under the influence of cannabis in the workplace, including medical cannabis, several of the law's key provisions raise more questions than they answer regarding how such policies can be implemented effectively.
How The Law Limits an Employer's Ability to Regulate Off-Duty Cannabis Use
Medical cannabis has been legal in Rhode Island since the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act passed in 2006. Effective immediately, the Rhode Island Cannabis Act allows state residents over the age of 21 to possess and consume cannabis for recreational purposes. At the same time, the General Assembly has limited the ability of Rhode Island employers to discipline employees for off-duty cannabis use. As a general rule, employers cannot "fire or take disciplinary action against an employee solely for an employee's private, lawful use of cannabis outside the workplace and as long as the employee has not and is not working under the influence of cannabis[.]"1 As a result, employers are going to be limited in their ability to act on pre-hire drug tests that report positive for marijuana use.
Employers can still implement and enforce policies to prohibit cannabis in the workplace and prohibit employees from performing work while under the influence, including work at remote locations. Notably absent from the law, however, is clear guidance on when an employee is considered "under the influence." Yet, the law provides that an employee is not considered "under the influence solely for having cannabis metabolites in his or her system."2 In other words, if an employee tests positive for cannabis on a test that measures only cannabis metabolites, those results do not establish that employee is under the influence within the meaning of the law. Employers may struggle to establish that an employee is under the influence and, therefore, subject to discipline by an employer under its policy.3
Limited Exceptions for Safety-Sensitive Positions, Collective Bargaining Agreements and Federal Contractors
The law provides employers with greater flexibility in managing employees who work in jobs traditionally referred to as safety-sensitive positions. If an employee performs work that is "hazardous, dangerous or essential to public welfare and safety,"4 employers may adopt and implement a policy prohibiting the employee's use of cannabis 24 hours prior to beginning work.5 This provision, however, does not resolve the difficulty in assessing whether an employee is under the influence at the time of a test and it may be difficult (if not impossible) for employers to pinpoint the time an employee consumed cannabis. Because, depending on the testing method, an employee may test positive for cannabis metabolites outside of that 24-hour window, reliance on urine and hair tests alone still may not support adverse employment action, even for safety-sensitive roles.
The law does, however, provide clearer guidance on the impact of the law on employees subject to collective bargaining agreements, or governed by federal law. The law permits an employer to discipline employees who are prohibited from cannabis use pursuant to the terms of a collective bargaining agreement.6 Likewise, if an "employer is a federal contractor or otherwise subject to federal law or regulation such that failure to take such action would cause the employer to lose a monetary or licensing related benefit," compliance with the law is not required.7
Rhode Island becomes the fourth state to expressly limit an employer's ability to rely on off-duty cannabis use in making certain employment decisions. Given the impact of the new law on both employee behavior and testing rules, employers in Rhode Island are encouraged to review the impact of the new law on their operations and update their policies swiftly.
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Posted: June 8, 2022
1 R.I. Gen. Laws § 21-18.11-29(d).
2 R.I. Gen. Laws § 21-18.11-29(a)(3).
3 Rhode Island has very specific (and limiting) laws governing reasonable suspicion drug-testing. See R.I. Gen. Laws § 28-6.5-1. For a longer discussion about this topic, please see Eric B. Mack, Elizabeth McKenna, and Jennifer Chierek Znosko, Rhode Island Supreme Court Upholds Dismissal of Driver Who Refused Reasonable Grounds Drug Test, Littler Insight (June 26, 2020).
4 The law states that jobs that are "hazardous, dangerous or essential to public welfare and safety" include the "operation of an aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school buses or public transportation; use of explosives; public safety first responder jobs; and emergency and surgical medical personnel." R.I. Gen. Laws § 21-28.11-29(d)(2).
5 R.I. Gen. Laws § 21-28.11-29(d)(2).
6 R.I. Gen. Laws § 21-28.11-29(d).
7 R.I. Gen. Laws § 21-28.11-29(d)(1).
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