Up in Smoke: Should businesses still drug test for marijuana?

Excerpted from a Business.com Blog by Skye Schooley

Congrats. You can finally buy weed legally in New York! OK, if you’ve ever been to Manhattan, you’ve likely already seen (or smelled) the endless number of weed shops and trucks on seemingly every corner. While we’re not entirely sure how those didn’t get shut down previously, New York recently joined the growing list of states that have legalized the sale of recreational marijuana.

Support for legalization is at a record high. Eighty-nine percent of Americans agree it should be legal, according to a Pew Research Center survey. States must be listening, because the District of Columbia, three territories and 37 states have legalized the use of marijuana, be it medically, recreationally or both.

As more states move toward passing laws that legalize pot use, HR departments need to determine what the trend means for their employment screening process and background checks.

State laws and regulations
Many employers currently drug test workers for illicit substances – including marijuana – as part of their pre-employment screening process. While this might have made sense when pot was an illegal substance across the country, the legalization of marijuana in parts of the U.S. has caused a domino effect of marijuana-related state laws and regulations that businesses should be aware of.

According to the National Conference of State Legislatures, 14 states and D.C. have passed cannabis employment laws that prevent employers from refusing employment or discriminating against medical cannabis patients. A few states, such as Nevada and New Jersey, also have similar laws that protect recreational marijuana users.

On the flip side, there is no federal law that prevents marijuana drug testing, and many states leave the decision up to the individual employer. Strong arguments can be made in support of both, including and excluding weed in drug tests, so businesses should carefully weigh the pros and cons to determine if they should continue testing.

Reasons to keep testing
Although some companies might forgo testing job candidates and employees for marijuana use, there are still some benefits of continued drug testing.

Legal compliance
There are heavily regulated industries and certain professions (school bus driver, airline pilot) where job candidates and employees must be tested for drugs, and marijuana is on the list of no-go substances. Employers operating in these regulated spaces should probably continue drug testing if they want to stay compliant with federal, state and local regulations.

Another regulation to consider is the Occupational Safety and Health Act (OSHA). This legislation has a general duty clause that requires employers to provide a safe work environment. While OSHA might not set explicit standards for drug-free workplaces, substance abuse in the workplace can be a hazard to the user and others. If this is considered the case at your business, you are legally required to ensure employees are drug-free.

Workplace safety
Speaking of keeping people safe, workplace safety is another reason why many employers choose to continue drug testing. Drugs of any sort can cause workplace safety issues, and marijuana alone can have side effects like lightheadedness, dizziness and fatigue. More serious side effects can include disorientation. Since weed impairs judgment and coordination, a staffer working in certain conditions while high could be a safety risk for other employees and your customers, which is definitely something you want to prevent.

Reasons to stop testing employees
While some employers can still find value in drug testing employees and job candidates for marijuana use, others may question its necessity, especially as weed usage becomes legal in more states. And, to be fair, just as there are reasons to continue testing workers for pot, there are a few reasons to stop doing so as well.

Marijuana legalization and inconclusive tests
Although marijuana remains illegal at the federal level, state laws and local regulations around marijuana usage are changing rapidly. As more states move to legalize weed for medical and recreational use, it creates a gray area for employers when it comes to testing.

Additionally, whether a person is actively high on marijuana is usually challenging to prove. Unlike testing for the intoxication of other substances like alcohol, which can be easily identified with a breathalyzer, testing for traces of marijuana in a person’s system tells you only that they have previously used, not whether they are currently high.

So, if it’s medically or recreationally legal for your workers to use marijuana outside of work, and current tests don’t serve as a clear indicator as to whether a person is actively high, you may question the relevancy in testing.

Recruitment and retention
The unemployment rate was only 3.7 percent in October 2022, and employers are feeling the squeeze of a tight labor market. The surging popularity of remote work has allowed businesses to cast a wider net in terms of new hires, but testing job candidates and employees for marijuana can quickly cut holes in your recruitment strategy.

About 18 percent of Americans use marijuana, according to the CDC, and there are an estimated 3.6 million state-legal medical cannabis patients alone, per data shared by Karger and its Medical Cannabis and Cannabinoids journal. We can expect the number of pot users to increase as more states legalize the drug. If you aren’t hiring or retaining employees who fail marijuana drug tests, you may be eliminating an overwhelming number of people from your talent pool. To avoid doing so, you may want to eliminate testing for marijuana.

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