Excerpted from a Seyfarth Shaw LLP blog by Jennifer L. Mora

The latest Gallup poll shows 68% of Americans support cannabis legalization. Further, the rate of positive cannabis test results has jumped in the last decade. According to recent news reports, some large employers have stopped testing applicants for cannabis. As a result, other employers may be pondering whether to change their approach to an increasingly popular drug that is legal for medicinal or recreational use in most states.

States have been passing medical and recreational cannabis laws at an increasing pace. Years ago, when states first stepped foot in this arena, the laws and courts interpreting them allowed employers wide latitude in enforcing their drug-free workplace policies. But then courts in Connecticut and Massachusetts, for instance, issued game-changing decisions, holding either that the federal Controlled Substances Act (CSA) and state law do not conflict because the CSA does not prohibit employment of illegal drug users or that employers may have a duty to accommodate medical cannabis users. Since then, more states have been enacting laws and courts are issuing new decisions that make it more difficult for employers to enforce their drug-free workplace policies.

Employers are now asking whether they should forego cannabis tests altogether. Some issues to consider:

This rapidly evolving landscape presents challenges for employers, especially multi-state employers. Employers must balance several issues, including complying with conflicting federal, state, and local laws, maintaining a safe work environment, protecting applicants’ and employees’ privacy, and attracting quality talent. Employers considering discontinuing cannabis testing should work with experienced counsel to discuss and weigh the considerations.

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