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Legal Insider: Do New Drug Laws Impact Drug Testing, Security Clearances?

Berry&Berry2

This is a biweekly sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm that specializes in federal employee, security clearance, retirement and private sector employee matters.

Several states have recently passed laws legalizing the use of certain drugs, such as marijuana, for either recreational or medical use.

Officials in the District of Columbia recently passed a law that legalized the limited possession and cultivation of marijuana by adults 21 and older.

Virginia has been less accepting of any change to its existing drug laws as a number of similar drug legalization bills have met significant opposition. Maryland has proposed a bill that would legalize, tax, and regulate marijuana for adults 21 and over, which remains in a state house committee.

In light of recent changes to state laws legalizing certain drug use, employees and employers alike are questioning how these changes will affect the employer’s ability to continue to require drug testing in the workplace and potentially terminate or discipline an employee for positive drug test results. However, many employers still continue to test employees for illegal drug use.

While some jurisdictions have legalized the use of certain drugs, they have not yet updated their laws to prohibit testing for legalized drugs. For instance, a D.C. employer can still test its employees for marijuana use despite laws that now legalize marijuana use in the District.

Although D.C. has proposed new laws to place some limits on drug screening for marijuana use in the workplace, such proposals are still in progress. As a result, employers in D.C. are essentially permitted to continue their existing drug testing requirements without making exceptions for the recent legalization of marijuana use in the District.

The federal government has taken the position that the use of illegal drugs, even in states that have legalized the use of certain drugs, still violates federal law. As a result, drug use, even where approved by state law, can result in a security concern being raised and/or the potential denial of a security clearance for federal employees and government contractors. In addition, a security clearance holder can be penalized for associating with other individuals engaging in drug use, even if the other individuals have engaged in state-legalized drug use.

Our law firm represents and advises employees on employment-related matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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