Recruiting and retention amidst marijuana legalization – clear as mud?

A leading drug-testing provider recently reported that positive drug tests were up 30% in 2021. That’s quite a spike! This increase has been attributed to the loosening restrictions on marijuana in the U.S.

Many states have legalized marijuana for medical purposes and a growing number are also legalizing recreational use. There’s also pending legislation that would remove marijuana from the substances regulated by the federal Controlled Substances Act. To put it succinctly, the times they are a-changing.

With the growing acceptance of marijuana and the intense competition for employees, many employers are wondering if they should still test for marijuana. It’s a complicated question as this is an area of monthly development. While laws differ by state and legal counsel should always be involved, here is some guidance for employers.

Yes, employers can require drug testing to detect marijuana and can refuse to hire or terminate based on the result. This can be done as a hiring condition, randomly during employment, when there is reasonable suspicion or following an injury or accident.

When it comes to off-duty medical marijuana use, the states are divided. About 20 states prohibit employers from discriminating against medical marijuana cardholders or from firing employees for testing positive for off-duty use.

Some states also require employers to reasonably accommodate an employee who needs medical marijuana for treatment – for example, by allowing an employee to start work later in the morning because they use medical marijuana at night to treat glaucoma.

Other states explicitly allow employers to fire employees for off-duty medical marijuana use. Some states don’t clearly address the issue, but courts have sided with the employer, holding that employers can fire employees for off-duty use of medical marijuana.

In recent years, more states have also legalized marijuana for recreational purposes. However, most allow employers to enforce zero-tolerance drug policies and fire employees for off-duty use. Only one state so far, Maine, protects off-duty recreational marijuana use.

For a state-by-state listing, please click here.

Whatever rules an employer decides to set concerning drug testing, those rules should be set forth in a well-written policy that is distributed to employees.

Employers can choose not to test for marijuana, but they should be cautious when making that decision. Many state workers’ compensation programs and federal contracts require employers to drug test employees. In addition, liability concerns may dictate drug testing. This is particularly true in any “safety-sensitive” position, including machine operators, construction workers, forklift and heavy equipment operators, security guards, truck drivers, doctors and nurses.

Excusing employees in these positions from drug testing could lead to serious liability should an accident involving an impaired employee occur. Any decision not to test a particular employee, job classification or group of employees should be made for legitimate business reasons and should not discriminate against any protected class.

The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.