It’s a great time to be a job seeker.
Employers are having a hard time finding enough workers to fill jobs. As a result, they are raising wages to attract candidates.
They’re also finding another good way to entice prospective hires: excluding marijuana from pre-employment drug tests or eliminating drug tests altogether. But employers face a maze of state and federal statutes and court decisions when they consider adopting or revising marijuana screening policies.
The Great Resignation
Tens of millions of workers lost their jobs during the first stage of the COVID-19 pandemic in 2020, but a strange thing began to happen as the economy began to recover in 2021.
Instead of returning to their jobs, a record 47.4 million workers voluntarily left their jobs in 2021, and the pace is the same this year. Aware that employers now needed their services in the rebounding economy, sometimes quite desperately, workers knew the market was in their favor.
Pot Screening on the Slow, Then Fast, Decline
Coincidentally, cannabis legalization continues to expand across the country. While most employers say they intend to continue preemployment drug screening, many now say they are removing marijuana from their preemployment drug panels.
Some taking that step even appear to be using it as a recruitment tool. Amazon, for instance, was not shy in announcing its decision to stop testing for pot last summer. Amazon also encouraged its “delivery partners” — the contractors who own and operate Amazon’s delivery vans — to advertise that they are not testing for cannabis.
A few months later, the staffing firm Manpower Group released a survey showing that 9% of 45,000 firms were at least considering eliminating drug screening to fill vacancies.
Preemployment drug testing has been around since the 1980s when President Ronald Reagan mandated it for federal employees. Private-sector employers followed suit, and by 1987 more than 20% were doing them. The practice hit a peak in 1996 when more than 66% of employers required it. Today, about 58% do.
In addition, preemployment drug testing has become more targeted. More employers limit screening to jobs that are safety-sensitive, such as those involving the operation of motor vehicles or machines.
The tests fell off sharply when COVID-19 arrived in 2020. Seven percent dropped testing altogether. Current Consulting Group surveyed employers and found that between 2020 and 2021 the number that removed marijuana from their preemployment drug testing nearly doubled, from 5% to 9.06%. Just as striking was the reason cited by 42% of those who ended marijuana testing: concern about lawsuits and legal liability if they test.
Pot Gains Broad Acceptance
This means that for many employers, halting pot screening can be a popular move as well as a sound way to fill jobs. But as the respondents in the Current Consulting Group survey said, much of the motivation now is avoidance of legal risk from marijuana users.
Navigating the Legal Landscape
But there can also be risks in halting preemployment marijuana screening because pot remains an illegal drug at the federal level. This means employers run the risk of sanctioning illegal drug usage if they eliminate testing.
This risk is especially acute for employers who rely heavily on federal funding, such as managed-care providers. The risk of investigations might be low now, but that could change under a new administration.
But many legal-cannabis states prohibit penalizing workers and applicants who test positive. In 2020, New York City became the first jurisdiction to explicitly bar employers from testing, with exceptions for certain work categories. Philadelphia followed suit in January this year. Also, some jurisdictions, including the City of Kansas City and St. Louis County, Missouri, ban preemployment marijuana screening for their own workers.
Employers can still test for marijuana, even in states where it is legal. The sticky legal issue for employers is that some of these states provide protections for users who are fired or don’t get hired because of a positive test result.
For employers and employees alike in cannabis-legal states, the legal landscape can be confusing. For both, a wise step may be to speak with an experienced employment attorney who is knowledgeable about this complex area of law.
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