Employers should think twice before drug-testing every job applicant since workers’ state-law rights for marijuana use are quickly on the rise. Marijuana use by adults in the U.S. almost doubled between 1984 and 2015, it remains illegal under federal law, yet there is a “march toward legality” across the country under state law, a conflict that is confusing to employers.

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.

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. Many employers in or near states where marijuana has been legalized increasingly are dropping marijuana from drug-test panels.

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.


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.

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. That doesn’t mean an employer can’t screen for it, pull a job offer or terminate for a positive marijuana test result.

In deciding how to respond to a positive marijuana test, it is recommended to talk with a job candidate or employee about when they used marijuana, how they used it, and whether they used it at work. This area of the law is moving quickly and at least 17 other states have legalized medical marijuana but don’t yet have anti-discrimination provisions.

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. Utah and Oklahoma are considering legalizing medical marijuana, and Michigan has a ballot initiative to make marijuana use legal for any reason.

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.

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. 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.”

We still have not seen the Department of Justice (DOP) 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. 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.

Additional Steps to Take

Steps HR should take when it comes to marijuana use include:

  • Identifying safety-sensitive jobs.
  • Training supervisors to spot high workers.
  • Ensure 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.

Let us know what you think.