In 34 states and the District of Columbia, medical marijuana use is legal.

But whether it’s legal or not doesn’t stop employers from asking job applicants for pre-employment drug testing to detect THC.

That’s the case for many residents in Nevada — one of the first states to ban pre-employment marijuana drug screening.

Nevada’s new law went into effect Jan. 1, 2020. The law, however, does not apply to firefighters, EMTs, drivers or workers in “safety sensitive” jobs.

The New York City Council joined Nevada by banning many employers from pre-screening job applicants for THC. The city council voted April 9, 2019 and requested a signature from Mayor Bill de Blasio (D). Since no action was taken by the mayor, it went into law within 30 days, according to reports.

If employers fail to honor the new law, it would be considered an “unlawful discriminatory practice” unless the job falls under safety, transportation, childcare or other federal contracts or grants.

Utah passed similar legislation in May 2019 that bans employers from denying employment if a prospective candidate tests positive for THC. The law went into effect Jan. 1, 2020.

What does this mean for first responders?

A drug-free workplace is a requirement for ambulance companies, EMS facilities and fire stations that operate under federal grants, said Scott Moore, Esq., EMT, an attorney with Massachusetts-based Moore EMS Consulting LLC, a firm that specializes in human resources, employment and labor law.

Federal grantees and contractors can hold a zero tolerance drug-use policy, regardless of these new laws, he said.

“Many EMS providers are recipients of federal grant funds. For that reason, they are required to remain compliant with the drug-free workplace act,” Moore said.

This can also extend to those working in the private sector, such as private ambulance companies. According to Moore, these employers also have the right to test for THC and other substances before the job offer.

When agencies violate drug-free workplace policies, it can have far-reaching consequences.

“You can be penalized, contract terminated, or (be) excluded for future grants or contracts,” said Moore, who presented on the topic of pre-employment drug testing at the American Ambulance Association annual conference in November.

Privacy safeguards for EMS professionals

Moore suggests agencies work with a medical resource officer (MRO) when requesting pre-employment drug testing. The MRO acts as a third party who interprets the test results, he said.

For example, let’s say job candidates test positive for amphetamines because they take a prescriptions such as Adderall for ADHD. The MRO will find out if that person has a prescription and is using it properly.

This means the employer will never know all that background information — nor would it expose the potential job candidate.

“Spend the extra money on drug screens with an MRO because you don’t want to know how many people are taking medications like Adderall,” Moore said.

Employers also wouldn’t know what health condition candidates are treating for with medication, he added.

What about medical marijuana?

Even if an employee applies for a card that allows them to legally use medical marijuana for disease and symptom management, testing positive could prevent them from getting the job.

Technically, it would be within the employer’s rights not to hire that person, Moore said. People with safety jobs, such as first responders, are exempt from these new laws even for medical marijuana use.

After pre-employment drug testing

After an employee passes the pre-employment THC test and accepts the job offer, don’t stop educating them. According to Moore, EMS agencies must remind employees that drug use is not tolerated, even after their hired. It doesn’t matter whether they work for a federal contractor or a private company.

It can be as simple as a 30-second video about drug-free workplace requirements during the onboarding process, Moore said.

“Make sure employees know they are in a safety-sensitive position and are required to maintain a drug-free workplace, meaning they cannot have drugs in their system,” Moore said.

And don’t forget to train the people in leadership roles too. That way they can detect “reasonable suspicion of drug use,” Moore said.

The risk of not taking the rules seriously is that EMS agencies could lose contracts and renewals, which puts their entire organization at risk.

Bottom line: Have a process in place, make it clear and make sure it’s being followed, Moore said.

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