Three Ways Employment Screening is Impacted by Cannabis Laws

March 9th, 2021

With discrepancies at the federal and state level, a great debate is underway around the topic of marijuana testing for employment. Let’s take a step back and look at the laws and regulations surrounding marijuana use and screening. Laws and policies are rapidly evolving in this area, but why?

There are two storylines at play. First, businesses want their workforces to be safe, trustworthy, and productive. At the same time, a person who contributes to a safe, trustworthy and productive work environment may have a life outside of the office that helps make them an ideal employee when in the office. That life may include use of marijuana in states where medical or adult use is legal. Businesses need to evaluate candidates and employees holistically and take into consideration what makes them successful at their jobs as well as what may be a threat to safety.

Federal marijuana laws have remained consistent over time, with marijuana being listed as a controlled substance with a high potential for dependency and abuse and not accepted for medical use. At the federal level, there is little to no wiggle room. However, following California’s Prop 215 in 1996, the Institute of Medicine released a report around the potential therapeutic effects of marijuana, posing that controlled use can help with anxiety and sleep, both of which impact functioning on the job. The positive effects of marijuana have been examined each year since, with more and more states passing their own laws and regulations surrounding its use. The cannabis industry itself is booming, with many businesses who have defined their mission as helping customers live better lives.

While state laws vary vastly, it’s up to employers to determine their own policies, such as zero tolerance or an acceptance under set medical criteria. With so many factors and decision-makers in play, the discussion around the legality of cannabis use for pre-employment and ongoing screenings is complex and far from over.

To better understand the intricacies of how cannabis laws impact employment screening, employers need to consider three areas of legal compliance:

  1. Federal Law. Regardless of state or employer-specific regulations, federal law remains consistent and the most stringent. Under federal law, marijuana is a Schedule 1 substance under the Controlled Substances Act. At the federal level there is no accepted medical use, and distribution of marijuana is a federal offense. Federal government contractors and recipients of federal grants are obligated to comply with the federal Drug Free Workplace Act, which requires employers to provide a drug free workplace and prohibits employees from using controlled substances in the workplace. Enforcement has been deferred, but the Feds retain the right to ramp up at any time.
  2. State Laws. Individual states have passed their own laws surrounding cannabis use, both recreational and medical. This is where the conflict between federal and state law becomes apparent, where individuals living in certain states can be compliant with local laws but be in violation of federal law simultaneously. The National Conference of State Legislatures reported, post-2020 election, that almost 40 states have put into place medical marijuana or other cannabis programs, including 36 states with regulations for medical use, and 15 states for retail sales for adult use. While the U.S. Department of Justice has the right to challenge state laws, it is extremely rare for individuals who are in possession of marijuana to face federal prosecution. However, employers who seek to enforce a drug-free workplace may face challenges from employees who claim protection for medical use under EEO laws. In addition, some locations such as New York City, the state of Nevada, and Illinois have passed laws limiting an employer’s use of drug tests in denying employment. The conversation is increasingly centered on policies that regulate how marijuana is “recommended” by referring physicians, how it is dispensed, and how approved patients are registered. These factors may be considered by employers seeking to make sound decisions concerning permissible medical or other legal use at the state level.
  3. Industry-Specific Regulations. While employers have the freedom to create their own marijuana policies, they also have the right, regardless of state, to maintain a drug-free workplace by enforcing zero tolerance policies. In some industries, employers must follow their own industry regulations to maintain compliance. This is the case with the Department of Transportation (DOT) and other federal agency regulations. Safety-sensitive workers such as truck drivers, bus drivers, train operators, and pilots must continue to be tested for marijuana, and the DOT does not consider state-authorized medical marijuana use to be a valid reason to excuse a positive test result.

As noted in a recent Sterling blog post, as long as company policy is clearly stated, the general rule is still that businesses can implement pre-employment screening, random drug testing, and other post-hire testing, and can deny or terminate those who test positive for marijuana use. However, the growing list of state and local jurisdictions where employers cannot take adverse action based on marijuana is challenging the traditional mindset, and we are now seeing an evolving, flexible standard for marijuana use and employment screening. Anne-Marie Welch, a Birmingham, MI attorney, noted in an article for SHRM that, “More and more employers appear to be treating marijuana use like alcohol use and ignoring off-duty recreational use.” Employers should first understand their state and local laws before establishing their own regulations when it comes to pre-employment and ongoing marijuana testing.

There is no longer a “one-size-fits-all” approach to marijuana screening for employment. An employer must consider federal, state, and local laws, their own industry, and where they feel comfortable drawing the line for their employees.

Below are top legal considerations for employers to keep in mind during the decision-making process:

  • It is still common for many employers to test for marijuana except where it is not allowed (in some instances, pre-hire testing for marijuana is prohibited or restricted).
  • At the time of this article, about 20 states prohibit employers from discriminating against those who hold a medical marijuana card or from firing employees who test positive for marijuana due to off-duty use. Consult with counsel to determine applicability to your hiring program.
  • DOT does not consider state-authorized medical marijuana use to be a valid reason to excuse a positive test result.
  • In some states, employees who test positive due to medical marijuana use cannot be fired. However, in most jurisdictions, employers have the right to fire, discipline, or take other adverse action against an employee who uses marijuana at work or shows up to work under the influence of marijuana. Check with your counsel to ensure compliance.
  • In some jurisdictions where marijuana has been decriminalized or legalized, they are sealing, expunging, or retroactively dismissing marijuana convictions that would no longer constitute criminal offenses.

Laws and regulations surrounding marijuana use and employment are constantly changing. As such, it is important to remain current on various laws and their impacts on your business. Work with legal counsel to regularly review drug screening policies.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.

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