Legal Weed Drives Companies to Relax Their Drug Testing Policies

Businesses are scaling back pre-employment cannabis testing as a condition of employment in the wake of increased legalization of marijuana, shifting societal attitudes, and efforts to build a more diverse applicant pool.

Recreational marijuana use among workers reached “historic” highs last year, according to a recent analysis from Quest Diagnostics, one of the country’s largest drug-testing companies.

Minnesota will become the 23rd state, plus the District of Columbia, to legalize marijuana for adult recreational use when its law goes into effect Aug. 1. Almost all states allow some form of medical marijuana use.

As marijuana legalization spreads, employers navigating a patchwork of employment protections for users are seeking legal advice as they balance the need to recruit and retain a qualified and diverse workforce and potential liabilities and safety risks, attorneys told Bloomberg Law.

Some employers have dropped pre-employment marijuana testing in jurisdictions where the product is already legal, said Nancy Delogu, co-chair of Littler Mendelson PC’s drugs and alcohol practice group.

Others are reconsidering their policies “because they find it more difficult to recruit for certain positions,” she said. The recruitment rationale “is most prevalent” because employers want to avoid cutting from their potential talent pool a growing segment of the population that is using marijuana because of its increased legalization, she said.

Amazon.com Inc. and AutoNation Inc. are among the largest employers that have dropped marijuana from their employee drug-testing programs. Caesars Entertainment Inc., Las Vegas’ largest casino employer, similarly rescinded its policy.

The movement also has spilled over into professional sports, with the National Basketball Association recently reaching a deal with its players union to remove marijuana from its prohibited-substance list. Major League Baseball and the National Hockey League have also relaxed their marijuana testing policies in recent years.

“More people are using marijuana because it comes in so many forms and you could miss the opportunity to get good employees,” said Clifton W. Albright, a founding partner and president of Albright, Yee & Schmit, APC.

“If they’re not using it on the job, why do you care? That’s the attitude employers are taking,” he said.

Safety Priority

Workplace safety remains paramount and is one of the considerations for employers as they weigh their drug testing policies. In that vein, pre-employment marijuana testing is still mandatory in many industries, including construction, manufacturing, and transportation, attorneys said.

In places like California, New York, and Washington, D.C., which prohibit employers from taking adverse action against workers or job applicants based solely on a positive marijuana test, there are carveouts for safety-sensitive occupations like law enforcement and construction trades.

“There’s not a one-size-fits-all approach for employers,” said Alexa Miller, a partner at Faegre Drinker Biddle & Reath LLP.

Multi-state companies especially are having difficulty properly balancing workplace safety issues, recruitment, employee morale, and growing individual protections for off-duty marijuana use, she said.

“The patchwork of varying state laws makes legal compliance difficult,” Miller said.

She generally advises employers to move away from pre-employment screening for jobs that aren’t safety-sensitive and instead focus on-the-job impairment and post-accident drug testing, plus random tests when there’s reasonable suspicion of drug use.

Marijuana positivity rates in the general workforce increased by 10.3%, from 3.9% in 2021 to 4.3% in 2022, according to Quest Diagnostics’ annual Drug Testing Index. The index is based on more than 6.3 million urine tests the company conducted last year.

But that doesn’t mean workers were high on the job, Albright said. Marijuana’s active compound can remain in the body as fat for days or even weeks after consumption, thus resulting in a positive test, he said.

“When did they use it and whether a worker is under the influence” of marijuana are questions employers should consider to avoid potential liability where adverse actions against marijuana users are illegal, Albright said.

New Methods?

More companies that still conduct pre-employment drug testing are relying on saliva tests instead of urine or hair follicle testing to determine if a person is actually under the influence at work, attorneys said.

The window of detection for marijuana in a saliva test is up to 24 hours, so that method is expected to become more common, Delogu said.

New laws that will take effect next year in California and Washington banning businesses from firing or refusing to hire a worker because of a positive drug test—without also showing they were impaired on the job—will force employers there to change their testing methods, she said.

But whether employers can strike a balance between targeting off-duty marijuana users and those who are impaired on the job depends on the availability of reliable saliva testing and willingness to adopt that approach.

The California and Washington laws “are kind of banking on this testing option by making it available in the market,” Miller said. “But there’s still a significant number of employers who are using” testing methods that don’t reliably detect marijuana-induced impairment, she said.

The US Transportation Department also adopted a new rule allowing regulated employers to use saliva testing for pre-employment, random, reasonable suspicion, post-accident, or return-to-duty drug tests. The rule remains on hold until the government certifies at least two laboratories to process those tests.