Should Employers Still Be Testing for Marijuana Use?

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For many organizations, drug screening is a critical component of hiring and talent management. Drug screening can happen in a variety of situations: before hire, on a random basis, after a workplace accident, or when there is suspicion of abuse.

Until recently, drug screening seemed a clear-cut process: Testing positive for illegal substances, including marijuana, was typically grounds for adverse or corrective action. However, as more states legalize marijuana for medicinal and recreational use, there are significant implications for the workplace, including how organizations design and execute drug screening programs.

The sweeping trend of marijuana legalization seems to show no signs of stopping. So far, 33 states have legalized marijuana  in some capacity, and others are considering following suit. Furthermore, many of these states are also passing laws that dictate how and when employers can test for marijuana use. For example, Nevada recently became the first state to prohibit pre-employment testing for marijuana, with a few exceptions for positions that act in a safety or emergency response capacity.

These legislative changes have made many employers re-evaluate and revise their drug-testing policies. For some, that means discontinuing marijuana testing entirely. Major League Baseball, for example, recently announced  it had dropped marijuana from its “drugs of abuse” list and would no longer test players for the substance.

Is it time for your company to change its policies, too? Here are a few steps to take to determine whether your drug-screening practices need revising:

Understand Applicable (and Changing) State Laws

Federally, marijuana is still an illegal substance. However, some individual states and cities have passed their own laws, creating a complex maze of legislation employers must navigate carefully. Not only are laws changing almost daily, but certain state laws conflict with one another, creating unique policy-design challenges for employers.

In addition to Nevada, here are some other places that have passed marijuana-testing laws with direct implications for the workplace:

  1. Illinois legalized recreational marijuana use as of January 2020, and there are protections for employees who lawfully use marijuana outside of work. However, the law does explicitly permit “withdrawal of a job offer due to a failure of a drug test.”
  2. Starting in May 2020, pre-employment marijuana testing will be illegal  for New York City employers. The law does grant exceptions for positions in law enforcement, some construction jobs, and those providing medical or childcare services.
  3. New Jersey and Oklahoma each passed laws that expand protections for medical marijuana users who test positive in employment-related drug screenings. Applicants would need to show proof they have a valid license for medical marijuana. In both states, employers are barred from taking adverse action against candidates or employees who test positive for medical marijuana, with the exception of certain safety-sensitive positions.

Whether you have employees in these states or not, it’s important to remember that change is happening all across the country. These are just the latest examples of laws that are changing how employers must approach drug screening going forward.

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Develop a Clear Policy

These days, a workplace drug-screening policy can’t be silent about marijuana testing. Not only is marijuana at the center of a national debate, but it is also an increasingly popular drug among Americans. A recent Quest Diagnostics study found that marijuana is the most commonly detected drug in employment tests, with the rate of positive results growing steadily year over year.

Even with the legalization of marijuana in many states, it’s still reasonable to want a safe workplace that protects employees, customers, and members of the public. Whether you craft a drug-screening policy that aims for a drug-free workplace or one that eliminates marijuana testing altogether, the policy should be clear and should strive to educate employees about your drug-screening practices.

In general, a comprehensive drug-screening policy should:

  1. Communicate organizational commitment to a safe workplace, making clear that all testing is tied to health and safety, not a desire to penalize candidates or employees.
  2. Spell out the substances that will be included in testing, clearly noting which locations will include or exclude marijuana testing.
  3. Articulate testing procedures and methods.
  4. Explain the actions that can be taken when individuals test positive for certain substances.

Craft Your Drug-Screening Program With a Reliable Partner

Given the changing nature of marijuana laws around the country, it can be difficult to know how to proceed in revising your drug-screening policies and procedures. For that reason, some companies may consider working with a background- and drug-screening partner. If you decide to go that route, be sure to select a reliable partner that tracks the latest developments in state and local laws and can help you make sense of all the noise.

Workplace marijuana testing isn’t as straightforward as it used to be. In some states, including marijuana in pre-employment drug testing for certain positions can lead to penalties for noncompliance. In other states, it’s necessary to distinguish between on- and off-duty marijuana use, not to mention the need to be cognizant of protections for medical marijuana users. Each organization must decide how to craft a drug-screening policy and program that satisfies legal requirements while also aligning with organizational goals.

Kevin Neudecker is vice president of quality and compliance with Corporate Screening.

By Kevin Neudecker