Some Employers Questioning Whether to Stop Drug Testing Job Applicants for Marijuana Use

Written By ESR News Blog Editor Thomas Ahearn

With twenty-eight states and the District of Columbia legalizing medical marijuana, U.S. employers performing drug testing face a “conundrum” and are questioning whether they should “stop testing applicants for marijuana use now that more states have legalized it for medicinal or recreational purposes and popular acceptance of the substance has spread,” according to an article from the Society for Human Resource Management (SHRM).

The SHRM article ‘Should Marijuana Be Removed from Pre-Employment Drug Screens?’ explains the problem employers face drug testing for marijuana: But the drug remains illegal under federal law, and employers have the right to test for it, even in states where the substance is legal. Not only does federal law conflict with some states’ laws, but state laws also vary, sometimes significantly, challenging multistate employers.

SHRM reports surveys show that employers in the eight states where recreational use of marijuana is legal – Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington – as well as employers in the District of Columbia, which also has legalized recreational use of marijuana, are “gradually removing the substance from pre-employment drug testing panels.”

SHRM also reports a survey by the Mountain States Employers Council found seven percent of employers in Colorado removed marijuana from pre-employment drug testing and three percent removed marijuana from all employment drug testing. About 10 percent of companies in the Denver and Boulder areas and nine percent of companies from Pueblo removed marijuana from pre-employment drug testing.

Whether employers drug test for marijuana or not, experts agree “having a clear, well-thought-out drug testing policy addressing marijuana is a good idea” and employers should “consult with legal counsel familiar with the organization and its industry to review a drug-testing policy or create one with specific language on marijuana.” The article by SHRM Online Manager/Editor Roy Maurer is available here.

The percentage of workers testing positive for drug use is rising. As reported by ESR News in September 2016, the percentage of employees in the U.S. workforce receiving positive results in workplace drug testing has steadily increased over the last three years to reach the highest level in 10 years, according to an analysis of nearly 11 million workforce drug tests released by Quest Diagnostics.

The Quest Diagnostics Drug Testing Index (DTI)™ examined illicit drug use by the U.S. workforce based on drug testing performed nationally by the company for employers in 2015 and showed the positivity rate for 9.5 million urine drug testing in the U.S. workforce increased to four percent. The DTI found the positivity rate for marijuana detection in urine drug testing has increased 26 percent since 2011.

“For employers performing drug testing, the trend towards legalization of marijuana for medicinal and recreational purposes will be a critical workplace issue that will require attention, especially given state conflicts with federal law and the uncertainties as to how the new Justice Department will approach the marijuana issue,” says Employment Screening Resources® (ESR) founder and CEO Attorney Lester Rosen.

The fact that employers who use drug testing must deal with state laws allowing the use of marijuana was trend number 9 in the 10th annual ‘ESR Top Ten Background Check Trends’ for 2017. The complete list selected by ESR CEO Rosen that features emerging and influential trends in the background check industry for 2017 is available at www.esrcheck.com/ESR-Top-Ten-Background-Check-Trends.

ESR Offers Drug Testing Solutions

Founded by Attorney Lester Rosen in 1997 in the San Francisco, California-area, Employment Screening Resources® (ESR) – a strategic choice for employers concerned about accuracy and compliance in their screening programs – offers drug testing and occupational health testing to help organizations make informed hiring decisions. For more information, call toll free 888.999.4474 or visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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