Why Are Some Employers Limiting Pre-Employment Marijuana Testing?

Now could be good time for employers to review their drug testing policies. Most states have legalized medical use of marijuana. Federal legalization or reclassification of marijuana from its status as a Schedule I controlled substance is on the horizon. And more states are legalizing marijuana for recreational use or enacting workplace protections for its usage.

We previously discussed the federal and state law issues for marijuana in the workplace. As we outlined before, legal compliance with the ever-changing patchwork of state laws on marijuana remains a challenge, and there is no one-size-fits-all approach. 

Changes in attitudes toward marijuana use, coupled with continued difficulties recruiting and retaining talent, have led some businesses to scale back on marijuana testing, particularly in the pre-employment screening stage. We outline below several reasons employers are starting to consider this option.

I. State Law Protections and Possible Federal Legalization

States are not only legalizing recreational use of marijuana—some are also adding explicit protections for marijuana usage in the workplace. These protections vary, but often, they require employers to treat medical marijuana as any other medication. This means businesses have a duty to accommodate employee usage and cannot take adverse action against an employee based solely on a positive drug test. A business that runs afoul of state law protections may find themselves hauled into court for violating the state law, discriminating against the employee on the basis of their disability, or failing to reasonably accommodate a disability.

While marijuana, including medical marijuana, is still classified federally as an illegal, Schedule I controlled substance, that status may change as soon as the end of 2023, when federal studies into the medical benefits of marijuana are slated to be completed. If medical marijuana is federally legalized or reclassified, businesses can expect federal law to require them to treat medical marijuana as any other type of medication, such as opioids. In other words, if marijuana is reclassified or legalized by the federal government, employers could face federal liability for not responding to accommodation requests, discriminating, or retaliating based on medical marijuana usage and an employee’s underlying disability.

II. Knowing Less Is More

With the exception of safety-sensitive positions and federal government-regulated positions (such as by the Department of Transportation or pursuant to a federal contract), businesses may gain more by knowing less about an employee’s medical usage and status, especially at the start of employment.

Generally, a positive drug test for any substance, including marijuana, should prompt an employer to allow the employee to provide an explanation. These explanations often can turn into a can of worms, with the employee disclosing medical conditions and potential disabilities that the employer otherwise would have no knowledge of. One of the elements for proving a disability discrimination or retaliation claim is employer knowledge of the medical condition or disability. If the employer later takes adverse action against the employee, the employee can more easily claim discrimination or retaliation based on the medical information disclosed in explaining a positive drug test.

III. Issues with Drug Tests

The increased usage of, as well as positive drug tests for, marijuana have revealed significant issues with test accuracy and reliability. Marijuana stays in urine samples for up to a month and in hair samples for up to a year. Also, components of cannabinoids, including legal substances such as CBD oil or synthetic products legal in some states, like Delta-8, can trigger false positive results. Also, tests cannot capture differences in people’s metabolism and physical status and how their bodies process cannabinoids. In other words, businesses should take caution when accepting the results of a drug test or assume that drug tests can be inaccurate indicators of intoxication or impairment (or even illegal usage).

Employers should also couple positive drug test results with objective and observable symptoms of intoxication including dizziness, slurred speech or unusual behavior prior to taking any adverse action. Saliva tests for marijuana are increasingly being used as a more accurate testing method because they can detect marijuana usage within 24 hours. For instance, the U.S. Department of Transportation recently changed drug testing requirements, including the use of saliva tests for detecting marijuana. That final rule does not take effect until after the federal government has secured at least two laboratories who can handle the testing capabilities.

Development of a more accurate testing method can provide more relief and certainty to businesses when they rely on test results to take adverse action against an employee. But until then, employers should be cautious in assuming that drug tests can accurately capture marijuana usage or intoxication.

IV. Workplace Safety Concerns Can Be Relieved in Other Ways

Workplace safety concerns caused by marijuana use can be addressed through reasonable suspicion and post-accident drug testing policies instead of pre-employment screenings.

Also, businesses should maintain separate policies and criteria for safety-sensitive positions. Each position should be treated differently based on whether its duties implicate legitimate safety concerns, such as operation of heavy machinery, driving or other risky working conditions.

Accommodating marijuana usage, including for medical purposes, does not mean that a business tolerates employees coming to work high or working in unsafe environments. Most state marijuana laws that offer workplace protections do not permit an employee to use marijuana while at the worksite, during work hours, sell marijuana, or perform work while intoxicated. But it’s important for employers not to assume that someone who has a marijuana card or uses marijuana in their home during non-work hours is always intoxicated. Again, employers must be able to point to evidence of and observable symptoms of intoxication including dizziness, slurred speech or unusual behavior.

With more changes to marijuana laws likely in the near future, employers should start preparing to ensure compliance now. Please contact Rebecca Sha or any member of Phelps’ Labor and Employment team if you have questions or need advice or guidance.