Employers are increasingly dropping pre-employment drug screening for marijuana. While still in its early stages, the shift away from marijuana testing appears likely to accelerate as more states legalize cannabis use. Recreational marijuana use is legal in nine states plus Washington, D.C., and medical marijuana is legal in 29 states.
A low unemployment rate and the spreading legalization of marijuana have led many businesses to rethink their drug testing policies for the first time in decades. While testifying in a hearing, U.S. Secretary of Labor Alexander Acosta expressed the opinion, “it’s important to take a step back … and ask, are we aligning our drug policies and our drug testing policies with what’s right for the workforce?”
Marijuana use is still illegal under federal law, which makes this a difficult challenge for small businesses that don’t have extensive HR and legal departments. In states where medical marijuana is legal, small businesses increasingly risk running into legal trouble at the state level, if they deny a job to someone who has obtained a medical marijuana prescription. Three court cases in the past year have sided with employees, forcing companies in Connecticut, Massachusetts and Rhode Island to reinstate workers with medical marijuana cards who were fired, or whose job offers were rescinded, because they tested positive.
To add an additional complication, many companies receive discounts on their workers’ compensation insurance premiums if they conduct drug tests. Employers must also consider potential safety concerns associated with employees who may be impaired while at work. There’s no simple solution and firms must weigh the potential costs and benefits before changing their policies.
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