States and companies are changing the way they test for cannabis use

Pre-employment drug testing began with President Ronald Reagan during the War on Drugs when he mandated that federal employees undergo drug testing. Private-sector employers followed suit, becoming a typical routine for pre-employment drug testing.

Lawmakers in several states – especially Nevada, Montana, New Jersey, New York, and Montana – have created new policies that limit an employer’s ability to pre-screen applicants. However, understanding the changing laws and practices can take some time.

Current changes and implications for employees with cannabis

The legal landscape surrounding cannabis and the workplace are evolving. As an employer, you need to navigate a maze of federal and state statutes and court decisions when developing substance abuse policies and drug-testing practices for cannabis.

Currently, 18 states and D.C. have legalized recreational cannabis use. In addition, New York City, Philadelphia, and Nevada have outright prohibited pre-employment cannabis testing in most industries. Despite these laws, employers can still test for cannabis and aren’t restricted from complying with federal testing requirements.

However, some state laws provide medical or recreational cannabis users with some level of employment protection against adverse actions, like a failure to hire or termination for a positive test result. On August 19th, 2021, the New Jersey Cannabis Regulatory Commission issued initial rules implementing the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act, which Governor Phil Murphy signed.

The act legalized the use of recreational cannabis for adults aged 21 and older, creating hurdles for employers seeking to maintain a drug-free workplace. The new agreements almost entirely regulate the recreational cannabis sector, leaving many questions unsolved.

Another hurdle is determining whether keeping cannabis on drug-testing panels (pre-or post-hire) continues to make sense if employers act merely on a positive test result. And if you stop testing for cannabis, how do you ensure employees are not coming to work under the influence?

These complications prove that an employee “under the influence” has become a critical component to these new changes now that a positive test result is not enough under many state laws.

Proving that someone is under the influence isn’t as easy as it seems. Cannabis remains detectable in the human system for long periods, and that detectability varies with the type of testing performed.

Current testing methods are accurate but won’t establish whether an employee was under the influence of cannabis during work hours. Until employers can spot-test for intoxication, these challenges will continue as more states decriminalize and legalize cannabis.

What job seekers should know

Just because cannabis might be legal in your state, that doesn’t mean that job seekers can’t be penalized for its use. Under the federal scheduling system, the government classifies cannabis as a schedule 1 drug, meaning that it’s perceived to have no medical value and has the potential for abuse.

Job seekers should familiarize themselves with their state laws and the policies of the hiring organization during their application process.

It’s essential for job seekers to know the products they’re consuming. Even legal products derived from (or modeled after) cannabis can cause a positive drug test result.

Where do employers & recruiters go from here?

Is pre-employment cannabis testing deterring candidates from applying to your job listings? Are you eliminating otherwise-qualified applicants? How do you ensure the safety of your employees if you decide to steer away from testing altogether?

Montana Governor Greg Gianforte signed legislation on May 18, 2021, that will provide protections for off-duty use of cannabis that began on Jan. 1, 2022. Citizens of Montana voted to legalize recreational cannabis in November 2020.

However, this ballot initiative didn’t protect employment-related practices. The newly-signed recreational cannabis law still permits you as an employer to take action based on the use of cannabis while working.

The key to determining the right approach to best serve your business is implementing universal policies and practices. Consider if your company has a “business approach,” requiring that pre-employment cannabis testing is based on a business need. There’s no one-size-fits-all approach. What would work for a manufacturing facility may not be what works for a marketing agency.

Safety & well-being of employees

The bottom line with any approach should be the safety and well-being of your employees. Ensuring people aren’t working under the influence of drugs is a crucial component of keeping the workplace safe.

One of the best ways to do this is by creating a robust reasonable suspicion testing program, putting policies and processes in place that focus on monitoring employees who are under the influence.

This testing requires training your fellow HR professionals and management. Your organization will need to administer the program on signs of impairment, proper documentation of those signs, testing procedures, and clear communication of the program to employees for awareness and transparency.

While a reasonable suspicion testing program should be an integral component of a substance abuse policy for any employer, it’s especially critical where pre-employment cannabis testing has been eliminated or where there are limitations on the use of a positive result.

The future of cannabis use testing

As employers and recruiters ponder on the future of pre-employment cannabis testing, one thing is clear – you can no longer take the stance of “it’s how we’ve always done it.”

In the search for new talent and in light of the ever-expanding web of cannabis laws across the nation, consider making some tough decisions. Decide what approach to pre-employment cannabis testing would work best for your workplace.