Should Employers Continue Screening Workers For Marijuana Use?

In recent years, an increasing number of employers have ditched marijuana drug testing. Their decisions have been met with mixed reactions from business leaders and legal scholars. To help employers determine where they stand, this post highlights the main points that have been raised both for and against the discontinuation of marijuana drug testing.

History Of Marijuana Drug Testing

In the 1970s, President Richard Nixon began his infamous “War On Drugs” campaign, which aimed to reduce illegal drug trade in the United States. To help accomplish this goal, congress passed the Controlled Substances Act (CSA), which ranked marijuana as a schedule one drug, meaning that, from the perspective of the Federal government, it has a high potential for abuse and no recognized medical use.

In the following decade, employers became increasingly concerned with the use of drugs in the workplace but lacked adequate legal grounds to enforce drug testing. This changed in 1988 when congress passed the Drug-Free Workplace Act, which, among other things, required Federal contractors and Federal grant recipients to drug test their employees. By 1990, 45.9% of worksites had implemented drug testing programs.

For several years after, the number of organizations testing workers for marijuana use continued to climb. However, the prevalence of workplace drug testing has declined over the past few years.

Reasons For And Against Marijuana Drug Testing

Like many other organizational decisions, whether to continue marijuana drug testing is a complicated matter. Many points have been raised by various employers and legal scholars that both encourage and discourage the continued use of marijuana drug testing. The most prominent reasons are described below.

Reasons To Forgo Marijuana Drug Testing

1. Some US state laws now prohibit marijuana drug testing: At the time of this post, 36 states have legalized medical marijuana. Eighteen have legalized marijuana for recreational uses. Several of these marijuana-friendly states have enacted laws to protect residents from facing barriers to employment due to marijuana use. Many of these laws (e.g., Nevada’s Assembly Bill No. 132) prohibit employers from refusing to hire a prospective applicant because they tested positive for marijuana or from forcing them to even take a drug test.
2. Marijuana drug tests are not time-sensitive: Marijuana stays in the body long after its psychoactive effects have gone away. Because of this, many marijuana drug tests (e.g., urine or hair analyses) are able to detect the presence of marijuana in the body even when the user is no longer intoxicated.
3. Potential loss of talent attraction: Several companies are dropping marijuana testing because they believe it will improve their ability to find talent. For instance, Richard Broome, Executive Vice President of Communications and Government Relations at Caesars Entertainment stated that the company stopped screening prospective employees for marijuana use because “[they] believed that [they] were losing too many otherwise qualified applicants.”

Reasons To Continue Marijuana Drug Testing

1. Federal illegality of marijuana: Marijuana use and trade is still illegal in the US. Given that Federal laws often override state laws, some legal scholars believe this could mean that any state-level prohibitions of marijuana drug testing are preempted by Federal law.
2. The Drug-Free Workplace Act: As was mentioned above, the Drug-Free Workplace Act requires federal contractors and federal grant recipients to drug test their employees. This act still applies today.
3. Safety risks: Several studies have found that marijuana use is associated with a variety of impairments, both when the user is actively intoxicated and for some time after. For instance, a recent study on the effects of chronic marijuana use on driving performance found that chronic marijuana users had slower reaction times, deviated less in speed, and had difficulty matching a lead vehicle’s speed compared to nonusers. For jobs where deficiencies in attention or reaction times can pose a serious threat to the health and well-being of individuals who are downstream from the workers decisions, marijuana drug tests may be essential.
4. Potential loss of talent attraction: Though much of the American public is in favor of legalizing marijuana for recreational use, some organizations feel that a friendly stance toward marijuana use will have a negative impact on their brand and ability to attract talent. For instance, Peter Cappelli, head of the Center for Human Resources at the Wharton School at the University of Pennsylvania noted that many companies who have dropped marijuana testing are reluctant to talk about it publicly because “they don’t want to be seen as the only place in town where [marijuana users] should apply.”

Takeaway

As is often the case, there is no one-size-fits-all solution. Companies must weigh the pros and cons described above, consult with a legal professional, and decide what makes the most legal, ethical, and practical sense for their organization.