Marijuana: Weighing the Risks of Drug Testing in a Rapidly Changing Regulatory Landscape

It's 2019 and, when it comes to marijuana, it's a whole new world. With so many changes on the horizon, it’s a good idea to re-visit your drug testing policies.

Here are a few marijuana facts for you to consider, as of February 2019:

• While marijuana is still a Schedule I drug under federal law (making it illegal to produce, distribute, and use), marijuana use for recreational purposes is now legal in 10 states and marijuana use for medicinal purposes is legal in 33 states plus D.C.
• According to an industry watcher, nine states (Connecticut, Illinois, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, and Vermont) are considering legislation to fully legalize marijuana for medicinal and recreational purposes in 2019, and there are movements in 12 other states (Kansas, Wisconsin, Pennsylvania, Texas, South Carolina, Arizona, Florida, Ohio, North Dakota, Mississippi, Nebraska, and South Dakota) to introduce legislation that would partially or fully legalize the use of marijuana.
• In January, 2019 an Oregon Congressman introduced a bill to legalize marijuana at the federal level and regulate it like alcohol, and has not-so-ironically named it the Regulate Marijuana Like Alcohol Act.
• According to 2018 research from Gallup, about one in four (24 percent) adults (ages 18 to 29) report regularly or occasionally using marijuana.
• 62 percent of Americans, per a Pew Research poll, said they favor the legalization of marijuana.

The takeaway: the acceptance of marijuana is quickly growing ... and the regulatory landscape is also changing, so your business may need to make adjustments where applicable.

According to the popular health website Healthline, marijuana is “usually detectable in bodily fluids for one to 30 days after its last use” and as with other drugs, it may be “detectable in hair for several months.” So, what does that mean if a positive drug test comes back on a prospective employee? It's not an easy question to answer. But there is some good news for you, as an employer: in many cases, the decision may be yours.

If your company is in a specific industry — transportation, safety, defense, transit, and aviation — you may be required by law to perform drug testing, follow specific guidelines, and take action if a current or prospective employee has a positive result. Other businesses and organizations in the government, healthcare, media, and education industries may also be required to have employee drug testing policies.

But in the end — and assuming you're not required to comply with an applicable federal, state, or local drug testing laws — your drug testing policy is in your hands. A recent NBC News report said that 57 percent of employers in one study conducted drug tests for job candidates back in 2011 and that number has “likely fallen since then.” The report also cited a Colorado study from 2014 that showed that employers testing for drugs fell from 77 to 62 percent in the space of three years. Big companies like Apple, Facebook, Whole Foods, and Starbucks have either (privately) relaxed their drug testing policies of late or eliminated them altogether, according to a report from Alternet.org, an independent news platform.

But employers can’t ignore the evolving drug landscape.

It’s imperative you consider your company's nature of work, business needs, industry, and the potential risks to decide whether you must or want to require testing applicants and/or current employees for marijuana use. Before implementing a drug testing program, you should consult with an attorney for initial and ongoing compliance with applicable laws, and to mitigate risk for potential litigation. You will need to ensure you have consistently applied compliant policies and procedures that are documented and communicated to employees and applicants, including appropriate signed acknowledgements and consent forms.

In the end, you're trying to strike a reasonable balance of acceptability; you don't want to lose out on qualified employees just because there’s evidence that they tested positive for lawful marijuana use in the recent past. But, at the same time, you may want to consider the safety of your employees and customers in mind, as well.