By Angela Preston
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:
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:
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.
Angela Preston is Senior Vice President and Counsel for Corporate Ethics and Compliance at Sterling, a leading provider of background and identity services. Find her on LinkedIn. For more information, visit Sterling or call 1 800 899 2272 with any questions you may have.
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