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An increasing number of states have allowed some form of legalized marijuana. Since marijuana is currently an illegal drug under the federal government, the decision to test or not to test for marijuana has left employers across the country scrambling. Add the tight labor market to the mix, some employers have nixed marijuana from their preemployment drug testing panel for non-safety sensitive positions all together.

So where is South Carolina on the growing trend of marijuana legalization? South Carolina is one of 13 states that allows for the use of cannabidiol or low-tetrahydrocannabinol products. Most states in the United States allow recreational or medical marijuana programs, and currently there are only four states in the country with no public cannabis access program.

As the stigmas associated with marijuana decreases and the drug becomes more accessible medicinally, South Carolina municipalities should pull their drug testing policies off the shelf. 

"City officials should start reviewing their existing drug and alcohol policies and educate managers and employees," Venyke Harley, Risk Management Services loss control manager, said. "People have access to purchase CBD products in South Carolina, and many of them do not realize they could test positive for marijuana during a preemployment, post-accident or reasonable suspicion drug screening."

Since CBD and marijuana products are not regulated, there is no clear consensus on how much THC defines impairment. An employee can frequently use CBD oil in high concentrations and test positive during a screening.

Over the last several months, Nevada and New York City have enacted laws making it illegal for employers to conduct preemployment tests for marijuana for applicants in non-safety-sensitive positions. The days of having a clear line in the sand for employees using marijuana are over, and municipal officials should not wait to start thinking about this issue. Enforcing a zero-tolerance drug policy may eventually create challenges in South Carolina.

What should South Carolina cities and towns do now?

  1. Conduct an annual review of the existing drug and alcohol policy with administration and a labor attorney.
  2. Complete a thorough review of the city's drug testing panel. Know what drugs are included in the drug testing panel. If the city has commercial driver's license drivers (CDL), the federal testing requirements could differ from the city's drug testing policy.
  3. Ensure that the drug testing vendor has a medical review officer in place. The role of the medical review officer is to review positive results and interact with the employee and city to confirm the results.
  4. Identify what positions in the city are safety-sensitive. Safety-sensitive positions are positions with functions that could cause harm to the employee or the public. Review this list with a labor attorney, as public employers have stricter guidelines for drug testing compared to private employers.
  5. Train managers, supervisors, and employees. Employees should clearly understand the drug testing policies and management should know what do if they suspect an employee is using drugs. Training should point out the physical and behavioral characteristics that may indicate impairment.
  6. Provide access to an Employee Assistance Program for employees. EAP programs are designed to help employees and their families navigate critical situations that can help prevent drug and alcohol use. City officials can also refer employees who test positive to an EAP program for drug rehabilitation counseling.

During the 2018 annual risk assessment of the SC Municipal Insurance Trust, only 53% of members complied with requirements for the drug and alcohol policy guideline. There's plenty of work to be done before cities and towns in South Carolina are faced with the drug testing conundrums seen across the country. For more information on drug testing policies and procedures, contact Venyke Harley at vharley@masc.sc or 803.933.1210

Members of the SC Municipal Insurance and Risk Financing Fund are eligible for 10 free hours with a labor attorney each year to assist with drug testing policy review. For assistance with eligibility, contact Cindy Martellini, claims manager, at cmartellini@masc.sc.