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 the legalization of marijuana is at a record high. Eighty-nine percent of Americans agree that it should be legal, according to a Pew Research Center survey in which 30 percent of respondents said it should be legal for medical use and 59 percent said it should be legal for medical and recreational use. States must be listening to what the people want, 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 “puff, puff, pass-ing” laws that legalize pot use, HR departments need to determine what the trend means for their employment screening process and background checks. So, should businesses still drug test for marijuana?
State laws and regulations around marijuana testing
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 entire 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.
For example, 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. It’s vital for employers to stay up to date with evolving cannabis and employment laws to avoid potential discrimination lawsuits.
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 their job candidates and employees for marijuana use.
Reasons to keep testing employees for marijuana use
Although some companies might forgo testing job candidates and employees for marijuana use – or cut drug testing altogether – there are still some benefits of continued drug testing to consider.
There are heavily regulated industries and certain professions (e.g., school bus driver, airline pilot, federal contractor, etc.) 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 employees 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 for their employees. 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 your employees are drug-free (marijuana included) to avoid causing harm to themselves or others.
Speaking of keeping people safe, workplace safety is another reason why many employers choose to continue drug testing job candidates and employees. Drugs of any sort can cause workplace safety issues, and marijuana alone can have side effects like lightheadedness, dizziness, drowsiness and fatigue. More serious side effects can include disorientation and even hallucinations. Since weed impairs judgment, attention 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.
This is especially relevant for employees in specific industries or roles. For example, a graphic designer might not cause injury to others if they light up a joint while working on their computer remotely. However, a high employee operating heavy machinery can cause serious harm to themselves and others while working under the influence. By the same token, is it any wonder fleet safety compliance involves screening for controlled substances and alcohol use? You wouldn’t want an employee to get behind the wheel of a company vehicle after smoking up.
Bottom Line: If your team members operate heavy machinery, work with vulnerable populations or are in heavily regulated industries such as healthcare, it’s probably a good idea to keep drug testing for marijuana and other substances for the sake of workplace safety and HR legal compliance.
Reasons to stop testing employees for marijuana use
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 around the United States. As more states move to legalize weed for medical and recreational use, it creates a gray area for employers when it comes to testing for the substance.
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 marijuana, not whether they are currently high.
THC, the psychoactive component of marijuana, can be detected for up to 24 hours in saliva, up to 12 hours in blood, up to a month or longer in urine, and up to 90 days in hair. Positive test results can depend on how often someone uses the drug, as well as their metabolism and hydration levels.
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 for it. In other words, it may not make sense to you to test for weed if it doesn’t conclusively prove someone is currently under the influence.
Did you know? As marijuana legalization increases, testing for THC in the workplace is decreasing. Quest Diagnostics shared with Pew that its data on workplace drug tests indicates that the number of urine tests to screen for marijuana decreased by 5 percent between 2015 and 2020.
Even though lifetime marijuana usage is actually lower among Black adults (45.3 percent) than white adults (53.6 percent, per data published in JAMA Network Open), employment drug testing for marijuana disproportionately affects people of color. This is a big problem for today’s America – you know, the America that is finally paying attention to diversity, equity and inclusion in the workplace.
A study that dates all the way back to 2010 and later shared in the American Journal on Addictions has proven this imbalance. The research indicated that racial differences in workplace drug testing exist within and across various occupations, with minorities (such as Black and Hispanic workers) being employed by a workplace that requires drug testing more often than their white counterparts.
To avoid perpetuating this imbalance, you may find that excluding marijuana from your list of drugs to test is the best way to go.
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 recreationally. Since this establishes that THC can be detectable for days – even months – after its use, this opens up the possibility of an influx in failed drug tests. 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 even though they are perfectly capable workers. To avoid doing so, you may want to eliminate testing for marijuana instead.
There are valid arguments on both sides of the testing debate. Whether to test employees for marijuana use is up to the employer to decide, barring industry regulations. Consider your sector, worker responsibilities, the marijuana laws in the state(s) you operate, and the pros and cons of testing for weed to determine the best option for your business.