Is Marijuana Testing Still Valid in Today’s Workplace?

If you live in a state where recreational or medical marijuana is legal, you may still have to submit to a drug test prior to employment. Most drug tests still include marijuana testing, and an employer can still choose not to employ a candidate who tests positive for the drug.

Marijuana Use Helped Ignite War on Drugs

Since the 1960s drug use has gone in cycles, with marijuana, heroin, cocaine, and other drugs leading the pack in the 1970s and 1980s. Increased drug use by Vietnam veterans led the federal government to take action after an accident aboard the USS Nimitz killed 14 service members, injured 48 others, and caused extensive property damage. Autopsies revealed that six of those killed tested positive for marijuana use. This incident ignited the war on drugs. Ultimately, the government began requiring drug testing for federal employees and contractors through the Drug-Free Workplace and the Anti-Drug Abuse Acts of 1988.

New York state soon followed suit by providing a 2-10 percent reduction in workmen’s compensation rates to businesses that instituted a drug-free policy in the workplace. Industrial Code Rule 60 includes several different types of drug testing:

• Pre-employment
• Annual
• At random
• Reasonable suspicion
• Post-accident
• Return to duty

Shifts in Marijuana Testing

For nearly 30 years, drug testing was the accepted norm in the hiring process. Now, many employers are curtailing or eliminating marijuana testing, and in some cases, drug testing altogether. What changed?

One reason could be more acceptance of recreational drug use by younger employees. Marijuana is now legal in nine states, and some companies have found what employees do in their free time does not noticeably impact their ability to do their jobs. Companies in Colorado, where marijuana is legal, saw company drug testing for marijuana fall from 77 percent to 66 percent in one year. Serious drug addiction is still not acceptable, but companies are looking at providing help rather than punishment when someone has a problem.

One of the major reasons for the shift in marijuana drug testing is the tight labor market. With unemployment around 4 percent, finding and keeping qualified candidates is becoming more difficult. No company wants to be seen as allowing drug use, but circumstances dictate in order to find the employees they need, less severe drug testing policies are necessary.

Another reason to limit drug testing for marijuana is the cost to employers. A drug test can run $30-50 per person, an unnecessary additional expense given the current climate toward marijuana legalization. Nearly 64 percent of Americans favor legalization of marijuana. Marijuana for medicinal purposes is already legal in 30 states with other states putting it on future ballots.

Marijuana Testing and Employment Laws

Despite these figures, an employee can still be fired for using marijuana, such as when a quadriplegic employee was fired for using medical marijuana at home to control seizures. The Colorado Supreme Court upheld the firing. The court stated marijuana remains illegal under federal law, so the firing was justified.

All of this can be confusing for applicants and employers alike. In 2018, Maine became the first state to bar employers from testing for marijuana, or for taking action against an employee who uses marijuana when not at work. Medical marijuana users have won lawsuits in Massachusetts, Connecticut and Rhode Island after job offers were rescinded due to testing positive for marijuana.

Declining Support for Marijuana Testing

Employers are looking at the shrinking applicant pool and rethinking whether a marijuana test is required for an employee who is not doing work that requires operating machinery. Companies based in states where marijuana is legal are dropping the drug test requirement faster than those states where marijuana is still illegal. Yet as the labor market gets tighter, many companies are quietly doing away with the requirement to open the doors to more applicants.

A recent Gallup poll shows that 68% of Americans support legal marijuana. As an applicant, be aware that even if recreational or medicinal marijuana is legal in your state, it is no guarantee you won’t be terminated or not offered a job. As an employer, you still have the right to terminate an employee for drug use, unless your state specifically prohibits it. The law still favors employee drug testing and allows companies to test and fire employees who show signs of recent drug use.