“Ask DISA” gives employers an opportunity to ask the employee screening questions they need answered. With a focus on drug testing and background screening, DISA’s industry experts will answer each question received. To ask your questions, visit www.askdisa.com or email askdisa@ disa.com.
This month’s “Ask DISA” focuses on recent changes with drug testing laws in two states and how you can remain compliant when running background checks.
In Arizona, can I fire an employee for testing positive for marijuana?
There was a recent case involving a major retail chain that fired an Arizona employee for testing positive for marijuana despite the fact the employee possessed a medical marijuana card and disclosed that information prior to taking a urinalysis. The company claimed they were protected under the state’s Drug Testing of Employees Act, but the judge ruled the company couldn’t prove if the employee was impaired at work.
It’s advisable that employers do not terminate Arizona employees who hold a valid medical marijuana card based solely on a positive marijuana drug test result. Companies should ensure they provide employee education and reasonable suspicion training for managers, implement a medical disclosure policy and establish a documentation process. If a terminated employee later sues the employer for wrongful termination, this documentation and an established process could be a deciding factor in your case.
Does Oklahoma’s medical marijuana law have a safety-sensitive carve-out?
Oklahoma’s medical marijuana law prohibits an employer from refusing to hire, disciplining, or penalizing an applicant or employee based solely on a marijuana- positive drug test. Recently, the state passed legislation that creates an exception for positions involving safety-sensitive duties. This includes positions that involve duties an employer reasonably believes could impact the health and safety of the employee or others.
Examples of safety-sensitive positions include, but are not limited to, operating motor vehicles, equipment, machinery or power tools; dispensing pharmaceuticals; direct patient or child care; or handling, packaging, processing, storing, disposing or transporting hazardous materials, etc. Employers should establish which positions are safety-sensitive within their company and provide a clear and concise written drug testing policy abiding by Oklahoma medical marijuana laws. Once that’s complete and you share it with your employees, you should be in good shape.
When running background checks, how do I stay compliant?
It’s important to have a clear and concise written background check policy that remains consistent for all candidates who apply. Background checks must remain compliant with the regulations set forth by the Fair Credit Reporting Act (FCRA) and must also comply with state laws, as they vary widely. Before running a background check, the candidate must be notified and must give written consent for the employer to proceed with the check. Not all background checks are the same and, depending on the industry, what is required can vary. Standard background checks often include criminal history checks, employment and education verification, Social Security number validity, etc. Some positions require more, such as DOT testing history, state driving records, credit reports, sex offender searches, etc. Once a candidate is hired, employers are required to fulfill an I-9 and e-verify, which verifies the identity and eligibility to work for all new employees.
By following these steps, you can help ensure your background check process is as safe and effective as possible.
For more information or if you have questions about employee screening, drug testing or background screening, the professionals at DISA can help. Email your questions to askdisa@disa. com or visit www.askdisa.com.
Not all background checks are the same and, depending on the industry, what is required can vary.