As 2020 begins, many Texas employers are wondering if they can still drug test their employees for marijuana use. Several states have legalized recreational marijuana and most states allow medical marijuana. So what is a Texas employer to do?

After all, Texas sort of, kinda, decriminalized weed in the 2019 legislative session. When they legalized hemp because it is a drought-resistant agricultural crop, the Texas Legislature effectively said that cannabis with less than 0.3 percent concentration of THC, the psychoactive ingredient that gets you high, is “legal hemp”, while anything above that threshold is illegal marijuana.

However, making the determination of THC concentrations takes sophisticated equipment that the police departments and private testing labs don’t have yet. Many Texas police departments and district attorneys have announced they are not even bothering to prosecute possession of use of small amounts of marijuana. Therefore, it is, for all practical purposes, very difficult to determine if your employees are engaged in legal or illegal activities when it comes to weed.

In addition, the Texas Legislature expanded “compassionate use” (medical marijuana) in Texas, so that specialty doctors can prescribe medical marijuana to treat multiple sclerosis, Parkinson’s disease, ALS, terminal cancer, autism, and many kinds of seizure disorders. Past state law only allowed those very few patients diagnosed with intractable epilepsy to be prescribed medical cannabis products, which in Texas may only contain low levels of THC. Now, many more of your employees may be legally prescribed medical marijuana and you have to worry about violating the Americans with Disabilities Act when testing for marijuana.

Finally, CBD oil, which is a hemp-derived product, is legal in Texas and is being sold on every street corner. Unfortunately, there is little regulation of CBD products, so they may contain surprise ingredients like THC. The Fort Worth Star Telegram recently reported on lawsuit filed by a CBD consumer against a CBD oil manufacturer because he lost his truck-driving job after testing positive for marijuana when he used CBD oil for his aching back.

So do you as a Texas employer still test for marijuana? Yes, legally you still can. Think of weed like alcohol. It is may be more legal than it was before, but it can still impair your employees’ job performance and judgment, so you are entitled to know if your employee is stoned.

If you have safety-sensitive job duties at your business, definitely continue to test those employees randomly and when you reasonably suspect drug use because of impaired performance. For example, if you have commercial truck drivers who are regulated by the Federal Motor Carrier Safety Act, you as the employer must continue to test for and report marijuana violations to the new Drug and Alcohol Clearinghouse.

Just remember that pot doesn’t pass out of the body as quickly as alcohol, so a positive test may not necessarily mean that an employee is under the influence while on the job. Your employee could have smoked weed over the weekend, but been sober on Monday at work. A blood test is more accurate in testing marijuana than just a urine test, but you’ll need to make sure your testing facility gets specific written consent from the employee to perform this more invasive blood test.

For other jobs that are not safety-sensitive, you may save yourself some hassle if you stop testing for weed. Just tell the testing facility not to screen for THC when you are doing any drug testing.

If you do test your other employees for marijuana, be prepared to treat marijuana like a prescription drug and protect the employee from discrimination under the Americans with Disabilities Act:

• Require employees to report any legal drug use that could affect job performance.
• If an employee tests positive for marijuana, ask for a prescription or compassionate use card.
• Accommodate disabilities that are treated with marijuana by focusing on the essential job functions, not the disability or this particular method of treatment.
• Do not fire an employee for positive marijuana test until you have had a reasonable accommodation conference and attempted to accommodate the employee’s disability by changing some marginal job duties or granting leave for employee who temporarily can’t do job because of a pot prescription.

Whatever you decide, you need to revise your written policies to reflect the change in approach to marijuana use.