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August 11, 2021

Is the Future of Pre-Employment Marijuana Testing Up in Smoke?


With pre-employment drug testing being commonplace, we rarely—if ever—stop to consider how and why it started and whether it still serves its intended purpose. With the recent surge in state laws legalizing marijuana use (either medically or recreationally), perhaps it is time to pause and reconsider what the future should look like for pre-employment marijuana testing.

Pre-employment drug testing largely began during the “War on Drugs,” when President Ronald Reagan mandated federal employees undergo drug testing. Private sector employers followed suit, and within a decade pre-employment drug testing became ubiquitous. The contention, backed by studies often conducted by drug testing companies or the federal government from the 1980s, is that pre-employment drug testing increases workplace safety and productivity, decreases absenteeism/turnover, and generally deters drug users from seeking employment at a company that drug tests. In a vacuum, these perceived benefits are difficult to verify, and the reality is most employers conduct drug tests (pre-employment or otherwise) because that is what they have always done since the 1980s.

Current Landscape and Employment Implications

It’s no secret the legal landscape surrounding marijuana and the workplace is changing quickly. Employers must navigate a maze of federal and state statutes and court decisions when developing and revising substance abuse policies and drug-testing practices around marijuana. Currently, 34 states and the District of Columbia have legalized medical marijuana use. Nineteen states and the District of Columbia have legalized recreational marijuana use. Three locations—New York City, Philadelphia and Nevada—have outright prohibited pre-employment marijuana testing in most industries.

Despite the state and local laws referenced above, employers can generally still test for marijuana and are not restricted from complying with federal (i.e., DOT) testing requirements. Also, some state laws legalizing marijuana have carve-outs for safety sensitive positions, and all the current state laws continue to prohibit marijuana use on company property and employees working under the influence.

However, some state laws provide medical or recreational marijuana users with some level of employment protection against adverse actions, like a failure to hire or termination for a positive test result. This creates challenges for multi-state employers who are left struggling to decide how to address these issues through drug and alcohol policies, how to treat applicants and employees uniformly, and whether to have state-specific policies or universal policies on these issues.

Another challenge is determining whether keeping marijuana on drug-testing panels, pre-hire or post-hire, continues to make sense if employers cannot act merely on a positive test result. And if employers stop drug testing for marijuana, how do they ensure employees are not coming to work under the influence of cannabis?

Therefore, proving that an employee is “under the influence” has become a critical component, now that a positive test result is no longer sufficient under many state laws. Proving “under the influence” is not as easy as it seems. Marijuana remains detectable for long periods of time and that detectability varies with the type of testing performed. Current testing methods, although accurate, will not establish whether an employee was under the influence of marijuana during work hours. Until employers can spot-test for intoxication, these challenges will continue to mount as more states decriminalize/legalize cannabis.

Where to Go from Here: Practical
Tips for Employers

Is pre-employment marijuana testing deterring job applicants from applying with your company or eliminating otherwise-qualified applicants? How do you still help ensure safety of your employees if you decide to steer away from this testing altogether?

As employers grapple with attracting new employees and navigating the challenges of complying with federal, state, and local marijuana laws, they can consider several options regarding pre-employment marijuana testing:

  • adopt numerous state/locality-specific policies and practices;
  • implement a universal policy and practice that complies with the most restrictive laws for locations where they operate;
  • eliminate pre-employment marijuana
    testing altogether; or
  • adopt a “business need” approach, requiring pre-employment marijuana testing based on business need.

The key is determining what serves your business—or specific business units within your company—best. There is no one-size-fits-all approach here. What would work for a tech company’s office environment may not work for a manufacturing facility. Even within the same facility, you may require pre-employment marijuana testing for some applicants but not others, depending on how safety-sensitive those positions are.

If you decide to do away with pre-employment marijuana testing completely—in locations where there is no legal requirement to do so, you should carefully review whether this approach may expose your company to negligent hiring vulnerabilities. For example, if your employees operate motor vehicles, work within customer homes, or work unsupervised with vulnerable populations, you should consider the duty of care your company owes the public or the customers it serves.

The bottom line with any approach, however, should be the safety of your employees. Ensuring employees are not working under the influence of drugs is an important component of keeping the workplace safe. One of the best ways to do that is by creating a robust reasonable suspicion testing program—putting policies and processes in place that focus on monitoring for employees who are “under the influence.” This requires training human resources professionals and management, who will be required to administer the program, on signs of impairment, proper documentation of those signs, testing procedures, and then robust communication of the program to employees to promote awareness and transparency. While a reasonable suspicion testing program should be an integral component of a substance abuse policy for any employer, it is especially critical where pre-employment marijuana testing has been eliminated or where there are limitations on the use of a positive result.

As employers ponder the future of pre-employment marijuana testing, one thing is clear: we can no longer take the “it’s how we’ve always done this” approach. In the hunt for new employees and in light of the ever expanding web of marijuana laws across the nation, employers should consider making some tough decisions around what approach on pre-employment marijuana testing would work best for their workforces.

Jennifer N. Jones

Toyota Motor North America, Inc.

Jennifer N. Jones is Managing Counsel at Toyota Motor North America, Inc.

Michael L. Martinez

Toyota Motor North America, Inc.

Michael L. Martinez is Managing Counsel at Toyota Motor North America, Inc.

Olesja L. Cormney

Toyota Motor North America, Inc.

Olesja L. Cormney are Managing Counsel at Toyota Motor North America, Inc.

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