In several states across the US, marijuana has been decriminalized or legalized for medical and/or recreational use. There are many expected changes still to come in the upcoming years, leading employers to reconsider their approach to drug testing when hiring. Let’s look at some general trends and considerations of the subject:
Currently, medical marijuana use is legal in 38 states and about half of those have policies that address anti-discrimination for medical patients. From there, significantly fewer states also have requirements for employers to make accommodations for these patients. Some jurisdictions have even enacted laws or regulations to protect employees from discrimination based on recreational marijuana use outside of the workplace.
Considering all of this, it is first and foremost highly important to understand your specific state laws when hiring. However, even where marijuana is legal, employers oftentimes still have the discretion to set their own policies for various reasons.
Drug Testing Policies:
Are you testing for marijuana? Many companies are increasingly questioning the necessity of pre-employment drug testing for marijuana, particularly in regions where it is legal. Some organizations are moving away from testing for marijuana use completely while others are adjusting their thresholds to focus on impairment in the workplace rather than the presence itself. When reviewing and updating your drug testing policy, you should always consult your legal counsel.
Marijuana remains illegal under U.S. federal law, which can impact companies operating in states where it is legal. Some industries, such as those regulated by federal agencies, may be subject to federal drug testing requirements. For example, the Department of Transportation has specific requirements when it comes to marijuana testing that should be followed regardless of if your state law allows for use. Impairment in these positions poses a serious risk to the employee and others and as such requires specific attention.
The laws, and even public attitude, toward marijuana use continues to evolve, and this is influencing employer hiring practices. Some industries and companies may be more accepting of marijuana use than others but it’s crucial for employers and employees alike to stay informed about the specific laws and regulations in their region and industry. It is also important for employers and employees to be aware of their rights and responsibilities regarding marijuana use in the context of employment.