August 19, 2021

By Jason Herbert, Partner

Marijuana legalization has made strides in the United States in recent years. As of 2021, 18 states (plus DC) have completely legalized the recreational adult-use of cannabis and 37 states have legalized medical use of marijuana.  However, there is still a stigma around cannabis – medically prescribed or not. In many places, marijuana usage can be a barrier to a job. It is completely legal for a potential employer to administer drug tests. Laws vary from state to state but there are guidelines that most everyone must follow.

Applicants are required to know that they could potentially be drug tested as part of the screening process. This information can be listed in the job application or posting. Similarly, you could have already been offered a job, contingent on passing a drug test. Overall, most companies that intend to drug test candidates include that information in their job applications. In most cases you have little choice but to agree to drug testing or drop out as an applicant. In addition, all applicants for the same position must be tested similarly and all tests must be administered by a state-certified laboratory.

To Test or Not to Test; That is the Question

How does this affect states where recreational use is legal? This creates an interesting paradox. Without testing, there could be more job applicants and employers have better chances of getting the strongest candidates with a larger pool of prospects. On the other hand, with testing, employers can be sure they hire drug-free employees who will be safe on the job. Safety on the job is paramount therefore having an outright ban on marijuana usage is simpler for employers than handling it case by case. Depending on the business, drug testing might be essential. Truck drivers, bus drivers, and train operators are still tested for marijuana under the U.S. Department of Transportation laws.  Many companies that contract with the federal government and receive federal grants are required to maintain drug-free workplace policies as well. According to the  , they believe there is no level of cannabis use that is safe or acceptable for employees who work in safety sensitive positions.

Trial and Error

With the ever-changing state of cannabis law on a federal level, the nation is essentially in a “trial and error” situation. Employers have no choice but to keep up with these circumstances. The medical aspect of cannabis further complicates the matter. Several states have specific laws protecting medical cannabis patients from employment discrimination. Employers can require drug testing before and during employment if medical marijuana users are exempt from discrimination. As it pertains to recreational use, testing can return positive results weeks after a person uses marijuana. There is no way to tell if someone is a habitual user or if it was a one-time event.

Instead, companies should look for tests that measure performance impairment—some of which specifically target marijuana’s impact on qualities such as short-term memory.  “One trend we are seeing is that employers are not getting rid of drug testing completely, but they’re rethinking the frequency with which they test and/or the amount of time between testing,” explained Jonathan Havens, a partner and co-chair of  . Some employers are also “cherry-picking” which roles they drug test candidates for, focusing on roles that pose safety concerns. Less commonly, companies are transitioning away from screening candidates and employees for marijuana use.

Currently, employers and employees must continue the “waiting game” until federal and state employment laws come to a decision on the legalization of cannabis. As recruiters, we have seen a variety of methods for drug testing and screening candidates in general. What has your company done, and how do you see this evolving in the future?