With passage of Ohio’s recreational marijuana law and the increased acceptance of marijuana use in the general population, many employers that historically have conducted drug tests as a part of their pre-hire screening processes are finding themselves in a difficult position. The choice they face is between either maintaining their “zero tolerance” policy on marijuana, or eliminating or modifying their pre-hire marijuana screen testing to  expand their increasingly limited pool of qualified job candidates for hard to attract and retain positions.

Some employers participating in certain government programs (.e.g., An Ohio BWC Drug Free Safety Program) or certain positions (e.g., positions requiring a Commercial Driver License-CDL) are required to include marijuana at specific test threshold cutoff levels in their drug testing panel. If an employer is not otherwise required to include marijuana in their drug testing panels, they may establish drug testing panels at their own discretion, as long as they are otherwise in compliance with non-discrimination laws and regulations.

The primary reason employers typically conduct drug tests in the pre-hire process, if not otherwise required, are for safety-related reasons. However, other considerations such as attendance or performance- related concerns may also factor into such decisions. For the purposes of the analysis and guidance provided in this article, our focus will be on safety reasons.

Although it has been clearly established for a very long time that workers under the influence of drugs or alcohol pose a significantly higher risk of accidents and injuries, the actual impact of pre-hire drug testing for marijuana and the impact on workplace safety, if any, is much less clear.

In regard to safety, it would be reasonable to accept that a recreational user of marijuana would not pose any more of a safety risk as a recreational user of alcohol, as long as neither report to work under the influence of either substance. It would be extremely rare, very difficult to enforce, and greatly limiting to an employer’s candidate pool if they established a policy that prohibited employment of any recreational users of alcohol. Since employer processes to screen out recreational users of alcohol are virtually non-existent, why do  employers who are not otherwise required to do so continue to conduct pre-hire drug tests to screen out marijuana users?  If doing so is primarily for safety-related reasons, does pre-hire testing actually have any material impact on the reduction of workplace accidents and injuries? Surprisingly, there is very little research on answering this question and the limited research is somewhat inconclusive.

A Canadian study conducted from 2018 – 2020 was comprised of 2475 workers, consisting of three reporting groups on their marijuana use (“no past-year use”, “non-workplace use”, “workplace use”).  The results of this study were that there was no reported difference in workplace injury history between the “no past-year use” and “non-workplace use” groups. Unsurprisingly, there was a two-fold increase in reported injury history of the “workplace use group”. Canadian Study on Workplace Injuries for Cannabis Users and Non-Users

On the other hand, there are numerous studies that indicate that states that have legalized recreational marijuana use have experienced an increase in work-related injuries, including a study posted in the Journal of the American Medical Association in December 2023. This study reported that states that legalized marijuana (for recreational use) have experienced almost a 13% increase in workplace injuries, although this study does not make any distinction on the impact of companies that do and do not conduct pre-hire drug screens for marijuana.  JAMA Study on the Impact of State Recreational Marijuana Laws and Workplace Injuries

In summary, with Ohio’s legalization of recreational marijuana, there will likely be an increase of work-related accidents and injuries exceeding 10% of pre-legalization incident levels.  Establishing appropriate protocols around employee and supervisor education and training can assist in mitigating this risk.

Anecdotal evidence suggests the vast majority of active recreational marijuana users do not consume cannabis prior to or during working hours.   By conducting pre-hire marijuana testing, an employer may discourage an occasional irresponsible marijuana user from pursuing a position with their company, which may result in a very marginal reduction of work-related injuries, but doing so will be at the expense of eliminating the vast majority of responsible users from their candidate pool.  If you would and could somehow exclude all users of alcohol, it would also likely have a similar marginal impact on a reduction of work-related injuries, but at the exclusion of the vast majority of responsible users of alcohol and a very significant portion of your candidate pool.

So, what options do employers have that currently conduct pre-hire drug screen tests for marijuana but continue to struggle attracting and retaining employees in hard to find and retain positions?

Option 1) No Changes to Drug Testing Protocols – Continue to expand sourcing efforts to expand your available candidate pool, along with increasing the focus on retaining current employees.  Note: Regardless of any changes in drug testing protocols, these same candidate sourcing and employee retention efforts would apply to most employers.

Option 2) Eliminate Pre-hire Marijuana Drug Screen Testing with Increased Substance Abuse Awareness Training – Employers not required to conduct drug screening tests as specified above may eliminate pre-hire marijuana testing, but should also:

1. Increase their focus on employee and supervisor substance abuse awareness training;
2. Continue with reasonable suspicion and post-accident drug testing for marijuana.

Option 3) Modify Pre-hire Marijuana Drug Screen Testing Thresholds with Increased Substance Abuse Awareness Training – Employers not required to conduct drug screening tests as specified above (i.e., testing with a mandatory defined threshold), have the flexibility to consult with their drug test providers to alter the drug screening thresholds on both the screening cutoff and confirmation cutoff levels. Increasing these threshold cutoff levels will decrease the likelihood of having “positive” test results for periodic and light marijuana users, but likely will still identify very active and heavy marijuana users.  Note: There are still no viable drug screening tests to confirm if a user is currently “under the influence” of marijuana. Utilization of this approach should still be accompanied by an increased focus on employee and supervisor substance abuse awareness training, with a continuation of reasonable suspicion and post-accident drug testing for marijuana.

¹ These expanded threshold cutoff levels are for example purposes only and actual change to the cutoff levels should only be made after consultation with your drug test provider and legal counsel.

Note: Prior to making any changes to your substance abuse policy or drug testing protocols, employers should consult with their legal counsel to ensure any changes would be in compliance with any federal or state regulations.

The Aliniti HR Blog – Ohio Recreational Marijuana Law – Pre-Hire Drug Testing Considerations and Options is intended as an employer reference guide only and not intended to serve as legal advice; therefore any legal questions should be directed to legal counsel.

On the heels of issuing a new rule on March 11, 2024, providing a stricter interpretation of classifying workers as Independent Contractors, the Department of Labor (DOL) is likely to issue its other new rule increasing the “white collar” Salary Rate Exemption threshold in the near future. This new rule has been “on the radar” of HR (People and Culture) Professionals and many business owners for almost 2 years.  Most assessments I have read believe this new rule will likely be finalized in April 2024.

What will the impact of this new DOL rule be?

The current Salary Rate Exemption threshold for exempt employees is $684 a week ($35,568 annualized) for the administrative, executive, and professional exemptions — collectively known as the “white-collar” exemptions. The DOL’s proposal, if finalized in its current form, would initially raise the salary rate threshold to $1,059 a week ($55,068 annualized). The impact would be that even if the employee’s role meets the “duties” test for one of the “white-collar” exemptions, but their earnings do not exceed the new threshold, they would still be eligible for overtime earnings (1.5x regular rate of pay) for any work hours exceeding 40 during a work week.  The proposed rule would also automatically update the salary rate threshold every three years, based on the available wage data in those future years.

What will this new DOL rule not impact?

The new rule does not propose any changes to the current standard duties test for the administrative, executive, and professional exemptions.  Although no changes are proposed to these “white-collar” duties tests, the heightened awareness stemming from  issuance of a new rule will likely shine a bright light on positions classified as salary exempt, especially those currently below or slightly above the new threshold.

If the new rule is finalized in April, when will it be effective?

Similarly to the legal challenges being mounted on  the recent changes in classification of Independent Contractors, the final rule increasing the “white-collar” exemption salary rate threshold will likely also face legal challenges. However,  employers cannot and should not count on these challenges being successful to ultimately halt the implementation of this new rule. Typically, when establishing a final new rule effective date, the actual DOL enforcement date of a new rule will usually be several months later.

What actions should I be prepared to take or take now?

As noted above, besides meeting the salary rate threshold test, exempt classified employees also need to satisfy certain duties requirements tests. Neither their job title nor job description alone determines whether an employee qualifies for a white-collar (or any other) exemption. This is a good opportunity to ensure they meet these standards as well.  The DOL’s announcement of a new rule will, if nothing else,  create an increased level of scrutiny by workers who would likely  be impacted by the new rule.  Regardless of the legal fate of a new ruling, employers should be proactive in their assessment of their worker classifications under both the prior and new DOL rules.

Thus, if not already doing so, employers should closely review their classification decisions on any Independent Contractor arrangements, along with any employees classified as exempt with a salary currently below or around the salary rate threshold of the proposed new rule.  In addition, employers should also  review and affirm their exemption classification decisions for certain employees above the new threshold, if there are any questions about the clarity of their role meeting one of the “white collar” exemption classification “duties” tests.

Aliniti HR Blog – The Department of Labor’s New Salary Exemption Threshold Is Coming Soon, Probably is intended as an employer reference guide only and not intended to serve as legal advice, therefore any legal questions should be directed to legal counsel.

As you are likely aware, President Trump signed the “Families First Coronavirus Response Act” (H.R. 6201) on March 18th.  Under the Act as passed, employers’ obligations begin fifteen days after enactment, on April 2, 2020 and expire on December 31, 2020. Covered Employers will be required to post a notice informing employees of their sick leave rights; a model notice will be provided by the Department of Labor.   In addition, covered employers will be provided tax credits for Emergency Paid Leave and Emergency Paid Family Medical Leave.  A summary of key points of this act is below.  Attached is a more comprehensive overview from Taft Law.

Read more

In our attempt to “break through the noise” below is the most current information and information links regarding what you need to know and actions you should take to best navigate through the coronavirus issues impacting your business.

Read more