Limitations on Testing Employees for Marijuana Use

With the ever-evolving laws regarding marijuana use across the country, Texas employers may have questions about testing employees for use of the substance. While many states have legalized marijuana for medicinal and recreational use, Texas continues to ban its use except in extremely limited circumstances. Federal and state laws also give considerable latitude to employers who would like to test their employees for marijuana use. It’s understandable that employers might have questions and concerns about employees’ use of this drug and its potential effect on their businesses.

Texas Marijuana Laws

Texas has no law that legitimizes the use of marijuana for recreational or medicinal uses except for the incredibly limited exception of the Texas Compassionate Use Act. Under this law, patients with intractable epilepsy are allowed to use and possess low-THC cannabis to treat their condition. Otherwise, the use of marijuana in Texas is completely banned, and the drug is still considered a Schedule I controlled substance under federal law.

Texas Drug Testing in the Workplace

Under both Texas and federal laws, there is almost no limitation on the right of employers to utilize drug testing for marijuana use in the workplace. The federal government actually mandates drug testing for certain industries, such as transportation, aviation, and federal contractors, but does not otherwise require or prohibit drug testing for marijuana use.

Likewise, Texas law has no statute that regulates or restricts an employer’s right to require drug testing for their business, so long as the testing is not deemed discriminatory or illegal under other legal protections. For example, requiring only a certain race or gender of employees to be tested could be considered discriminatory, but generally requiring drug testing for employees is not considered a violation of Texas law. Drug testing can be a part of pre-job requirements as well as a requirement of employment throughout the employee’s tenure at your company.

The Texas Workforce Commission provides some advice in creating and implementing drug testing for marijuana and other controlled substances in the workplace. An employer’s policy for drug testing should emphasize the need for safety in the workplace and adherence to job requirements and work quality. The policy on drug testing for marijuana should be disseminated in writing to all employees subject to the testing and should be included in the employee handbook.  The statement should spell out what will happen if an employee refuses to comply with legal drug testing of employees at your business and the repercussions if an employee fails a test.  If testing only a portion of employees for marijuana use, it is recommended that the policy should cover all employees in certain job categories to avoid discriminatory practices.

Contact Our Office Now

This is merely an overview of factors involved in testing employees for marijuana use and should not be a substitute for legal advice.  You can learn more about your legal options for drug testing for employees in Texas by calling or contacting the employment law attorneys at Simon | Paschal PLLC in Dallas today. Schedule a consultation with our experienced employment lawyers to discuss what policies you can implement to test employees for marijuana use.

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