March 25th, 2022 | John Mallios, Senior Vice President, Drug & Health Screening, Sterling

Employment Screening Policies Adapt to Meet Changing Marijuana Laws

California voters passed the first state law legalizing medical marijuana in 1996. Since then, the number of states which have decriminalized or legalized medical and recreational marijuana has grown. 38 states (including the District of Columbia, Puerto Rico and Guam) now permit medical marijuana with 18 also allowing recreational use by adults. While marijuana use remains federally prohibited, many employers are revisiting background screening requirements as they adapt their policies to accommodate the changing legal landscape.

Workplace Safety Remains Paramount as Marijuana Laws Evolve

On a weekly basis, I field questions about the permissibility of marijuana testing in specific regions of the country. As efforts to legalize cannabis gain traction, employers must untangle an increasingly complex web of laws to stay in compliance while ensuring that workplace safety remains uncompromised. How?

Start by consulting with your legal counsel. Laws regarding medical or recreational marijuana don’t just vary from state to state. Local jurisdictions — counties and even individual cities — may also have laws to consider. Laws governing marijuana use aren’t the only concern, either. Some states have introduced standards impacting the hiring process. In New York, for example, the Department of Labor has emphasized that, now that marijuana is legal for adults over the age of 21, employers cannot discriminate based on marijuana use if it takes place outside working hours and when it does not involve use of the employer’s equipment or property. This applies to all public and private employers in the state, regardless of size or industry. Similarly, Philadelphia enacted a new law on January 1, 2022, that prohibits employers or agencies acting on an employer’s behalf from requiring a pre-employment drug test for marijuana. The bottom line: before you modify existing policies or establish new ones, run them by your legal counsel to ensure they comply with all applicable regulations.

Consider aligning your marijuana use policies with your existing alcohol use policies. One of the primary catalysts for the current Department of Transportation (DOT) requirements regarding workplace substance abuse was the 1991 subway crash in New York City. After the engineer was found to be under the influence of alcohol during the crash investigation, Congress passed the Omnibus Transportation Employee Drug Testing Act of 1991 (a crack vial was also found in the engineer’s cab). Now that marijuana, like alcohol, is legal in many states, it makes sense to handle compliance similarly. A risk-appropriate drug screening policy that addresses the employer’s pre-hire and post-hire requirements represents a contract between employers and their employees to ensure workplace safety and the public that these employees may interact with. If applied consistently and fairly, it can help ensure that new hires and current employees create and maintain a safe workplace without creating an undue burden for individuals acting responsibly and within their legal rights. A good policy still leaves people free to behave as they normally do outside of work if they live in a state which has decriminalized marijuana.

It’s also important to note that exceptions exist with decriminalized marijuana use, even in locations where pre-hire drug screening is prohibited. For example, certain job categories are exempt, including positions in law enforcement, positions requiring a commercial driver’s license, and positions of trust, such as those involving the supervision or care of children, medical patients, or other vulnerable persons. This allows you to mitigate risk where it is most appropriate while adjusting your background screening and drug testing policies to meet new standards.

Developing a Flexible Approach Helps With Hiring Challenges

On-the-job impairment jeopardizes lives, but it has additional (though less severe) consequences too. After the 1991 crash, for example, the public lost faith in subway safety, leading to a sharp decline in ridership and therefore lost revenue for New York city (besides the hundreds of lawsuits that were filed). While laws related to marijuana use remain in flux, the need to maintain safe workplaces to protect employees, customers, and communities remains. This is particularly the case in industries like transportation. Operating a vehicle — whether a semi-truck or a forklift — requires employees to remain at 100% competency and alertness. If an employee is under the influence of legal or illegal substances while on the job, the risk to employees, the public, and your organization could be significant.

According to analysis from Quest Diagnostics, positive test results for marijuana are on the rise. “Our data suggest that marijuana positivity has increased sharply nationwide since states began to legalize marijuana in 2012,” notes the report. Despite this, positivity rates have declined for federally mandated, safety-sensitive workforce testing since DOT testing initiated in the early 1990s. In the same report, Jenny Burke, senior director of impairment practice for the National Safety Council, notes, “Even though these are down, we must continue to educate people about the impairing impacts of these substances. And, as states and the federal government consider changes to the legality of marijuana, we can’t take for granted that they also understand the impairing impact of THC.”

A growing number of employers, including some who we work closely with, are removing marijuana from pre-employment drug-testing panels unless they are mandated based on the role being filled. One prominent example is Amazon. In 2021, the company announced, “In the past, like many employers, we’ve disqualified people from working at Amazon if they tested positive for marijuana use. However, given where state laws are moving across the US, we’ve changed course. We will no longer include marijuana in our comprehensive drug screening program for any positions not regulated by the Department of Transportation and will instead treat it the same as alcohol use.” However, Amazon also reiterated that impairment checks on the job and post-incident drug and alcohol testing would remain in place. Amazon’s position echoes a recent compliance trend, with many companies weighing their drug policy options and ultimately deciding to remove (or reduce) marijuana testing for pre-employment purposes, while keeping their post-hire testing measures firmly in place to mitigate risk on the job and in the workplace.

While some employers have made this policy change due to evolving laws, there’s another compelling reason: today’s competitive hiring landscape. A tight labor market coming out of the pandemic, combined with the subsequent “Great Resignation,” means many organizations are competing for qualified candidates. Attorney Shirley Akrasih tells SHRM that “Employers are taking a hard look at barriers to the recruitment process, and they are loath to reject an applicant because of a positive marijuana drug test.” She goes on to emphasize that “Naturally, not all employers are willing to make such a change and have valid concerns related to job performance, potential impairment, safety and liability.” A safety-sensitive position represents a justifiable need, and a policy can be crafted to meet local laws while addressing potential risk.

Need help striking the right balance? Talk with Sterling about creating a flexible, fair drug & health testing program to strengthen workplace safety.

John Mallios is the Senior Vice President, Drug & Health Screening at Sterling. John brings more than 30 years of diverse executive experience supporting thousands of employer drug-free workplace (DOT and Non-DOT) and occupational health programs.

This blog post is part of a Compliance blog series, diving into compliance trends, best practices, and updates.

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.