Employers Increasingly Drop Marijuana Testing of Job Applicants

By Allen Smith, J.D.Apr 25, 2018

Workers’ state-law rights for marijuana use are quickly on the rise.

Employers should think twice before drug-testing every job applicant, according to Secretary of Labor Alexander Acosta—advice many companies already are following in light of the patchwork of state laws affording rights to medical marijuana users and increased use of pot, experts say. Acosta made his remark at a House Ways and Means Committee hearing April 17.

Marijuana use by adults in the U.S. almost doubled between 1984 and 2015, according to a 2017 study. Michael Clarkson, chair of Ogletree Deakins’ drug-testing practice group in Boston, said one of his clients couldn’t staff its third shift if it screened for marijuana and was considering stopping the testing. “I’m sure they’re not alone,” he said.

Despite Acosta’s statement, marijuana use remains illegal under federal law, but there is a “march toward legality” across the country under state law, a conflict that is “confusing to employers,” Clarkson noted.

Safety First, a drug-testing division of Behavioral Health Systems, has had clients remove marijuana from their testing panels as a direct result of changes in state law, said Judi Braswell, vice president of business development with the parent company, headquartered in Birmingham, Ala. She added that some in certain industries, such as hotel and hospitality, don’t implement marijuana-testing programs due to concerns that firing those who test positive would cause significant staffing issues.

Even New York City’s fire department has loosened its zero-tolerance policy on drugs, according to Yahoo.

James Reidy, an attorney with Sheehan Phinney in Manchester, N.H., noted that when he spoke at this year’s Society for Human Resource Management Employment Law & Legislative Conference, he asked the more than 300 attendees whether they still drug-tested applicants. More than half the crowd raised their hands. He said the reasons vary. Some test because it’s required by law, such as with Department of Transportation-covered employees, or because the position is deemed to be safety-sensitive. Others test because they’ve always tested.

[SHRM members-only HR Q&A: What laws should companies be aware of when implementing a drug testing program?]

But he said that many employers in or near states where marijuana has been legalized increasingly are dropping marijuana from drug-test panels. He noted that attitudes about the use of marijuana are changing, with a recent national poll suggesting that 60 percent of people in the U.S. favored the legalization of marijuana.

Some employers don’t test for marijuana because it remains in the body for weeks. So a positive test result may not necessarily mean that an employee is impaired at work, noted Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles.

State-Law Patchwork

In several states—including Connecticut, Maine and Massachusetts—courts have ruled that an employee testing positive for marijuana has a viable claim against an employer for enforcing drug-free workplace policies, Clarkson said.

In 12 states—Arkansas, Arizona, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, Nevada, New York, Pennsylvania and Rhode Island—medical marijuana users have certain job protections, so pre-employment screens or random screens could trigger job protections in those states, he said. That doesn’t mean an employer can’t screen for it, pull a job offer or terminate for a positive marijuana test result, he said.

In deciding how to respond to a positive marijuana test, Clarkson recommended talking with a job candidate or employee about when they used marijuana, how they used it and whether they used it at work. While 11 of the 12 states’ protections for medical marijuana users were based on statutes, Massachusetts’ was judicially created, he observed. This area of the law is moving quickly. He noted that at least 17 other states have legalized medical marijuana but don’t yet have anti-discrimination provisions, he said.

Nine states and Washington, D.C., have legalized the use of marijuana use for any reason, but so far Maine is the only state protecting recreational marijuana users in the workplace, he added. Utah and Oklahoma are considering legalizing medical marijuana, and Michigan has a ballot initiative to make marijuana use legal for any reason, notes The New York Times.

Changing Views in the White House?

While many states are moving toward legalizing marijuana use, it’s unclear if President Donald Trump’s administration will embrace such legalization.

Attorney General Jeff Sessions has historically been a “strong advocate” for federal laws prohibiting marijuana use, Braswell said.

In January, Sessions rescinded the federal government’s former, relaxed marijuana enforcement framework under the Obama administration with a memo granting prosecutors the authority to go after anyone violating federal drug laws, Mora noted. But in March, Sessions clarified that he would focus on drug gangs, stating that federal prosecutors “haven’t been working small marijuana cases before” and “are not going to be working them now.”

Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y., said that since January, “we have not seen the DOJ [Department of Justice] take any real actions to enforce the law.”

Trump has promised Sen. Cory Gardner, R-Colo., that Colorado’s legal marijuana industry won’t be affected by Sessions’ actions, according to Gardner. “Yet any conversation between the senator and the president doesn’t change the fact that marijuana remains a Schedule I controlled substance and thus illegal under federal law,” Mora said.

Additional Steps to Take

Clarkson said that steps HR should take when it comes to marijuana use include:

• Identifying safety-sensitive jobs.
• Training supervisors to spot high workers.
• Ensure that managers who want to fire individuals for marijuana use are current on changes in the law.
• Provide an employee assistance program for those who want to be drug-free.

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