Marijuana Laws Are Changing. Should Your Employment Drug-Testing Policy Change, Too?

Hiring   |    Compliance   |   

Five states will vote on  marijuana legalization in November. Already, 25 states (and the District of Columbia) have legalized marijuana for medical and/or recreational use.

For employers, all those laws add up to a lot of questions.

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Abdi Soltani, Executive Director of the American Civil Liberties Union of Northern California, has studied questions surrounding marijuana legalization as part of the Blue Ribbon Commission (BRC) established by California Lt. Governor Gavin Newsom and the ACLU.

Although the BRC’s 2015 report didn’t take a position on legalization, it serves as a guide to many policymakers.

I asked Soltani some of the most common questions we hear from employers about drug testing and, specifically, how to approach marijuana policy given the changing laws.

One issue that confuses employers (and others) when it comes to marijuana is the relationship of state and federal law. Why does that make marijuana policy such a challenge?

Soltani: In our federal system, some areas of the law are uniquely the responsibility of the federal government, and some are uniquely the responsibility of the state government. Lawyers call these issues “preemption.” For example, the federal government determines policies related to immigration or whether we go to war. But there are many areas where both the federal and state government can have jurisdiction.

Drug policy is one of those areas. Marijuana remains illegal under federal law, whereas states have their own laws related to marijuana. Some have legalized its use for medical and even for recreational use.

Even while we were studying this question, federal enforcement priorities changed regarding how the government deploys resources when enforcing marijuana laws when people are complying with state law. So it’s a complicated issue – and a moving target.

What should employers keep in mind when considering marijuana policies?

Soltani: We need to consider marijuana policy in the context of other substances. These include legal drugs like alcohol and tobacco as well as illegal drugs and prescription drugs. Impairment from legal use and illegal use can pose different types of risk in the workplace.

Some of the most thoughtful people we heard from in the BRC process focused on the issue of impairment. Marijuana remains in the body long after any impairment it causes may have passed. So, while employers can have drug-free workplace policies, they should be sure that the policies are well-designed to accomplish the goals of a safe workplace – and that they’re enforced fairly.

What regulations affect employers who drug test or are considering drug testing?

Soltani: The ACLU has been involved in some issues related to drug testing – especially in public schools, in public employment, and as a condition of receiving government benefits. In general, we’re concerned about the intrusions on people’s right to privacy.

Employers should consider a variety of factors. The first is whether they’re a public sector or private sector employer, as the legislation and case law may affect them differently.

Next, employers should consider both applicable federal laws and the laws of the specific state in which they operate.

Finally, they need to pay close attention to the occupation and industry that they operate in, as the regulations – and the regulatory agency – can be different according to industry. For example, a railroad, airline, or long-haul truck company will have to follow different regulations than the neighborhood pizza shop.

Drug Testing Cheat Sheet

What about the question of hiring people with past marijuana arrests or convictions?

Soltani: As US law moves toward reducing criminal penalties and even legalizing marijuana, we are still left with thousands of people with records from past offenses.

First, I would encourage employers to consider the widespread racial disparities in the criminal justice system. Studies have shown that these disparities also show up in marijuana arrests and enforcement.

As a result, people of color are more likely to be arrested and convicted. If you make marijuana convictions a bar to employment, you’re taking past racial inequalities in marijuana enforcement in as a factor that affects your own employment decisions.

If you make marijuana convictions a bar to employment, you’re letting past enforcement inequalities affect hiring decisions. 
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Second, we really encourage employers to “ban the box” by not including the check box that asks job applicants if they have a felony in the first step of the employment application. Give candidates a chance to move forward.

When working with policymakers on this issue, we ask that policies have a more specific and narrow reason that would justify a person being excluded from a category of employment.

There are also emerging guidelines from the federal government to consider regarding what’s lawful and unlawful when considering past criminal records.

For example, standards adopted by the U.S. Equal Employment Opportunity Commission (EEOC) protect against racial discrimination in violation of Title VII of the Civil Rights Act of 1964. EEOC guidance on the use of arrest and conviction records prohibits blanket bans against hiring anyone with a record.

If a record is considered, the employer must assess the age of the offense, its job-relatedness, and any evidence of rehabilitation and mitigation. A useful tool for employers are two recent publications by the National Employment Law Project (NELP): Strategies for Creating Fair Employment Opportunities for People with Criminal Records and Ensuring Fairness in Background Checks for On-Demand Work.

What policy trends should employers watch out for when it comes to marijuana?

Soltani: Overall, employers need to understand that state laws are moving in the direction of recognizing marijuana as legal for medical or recreational use.

They need to monitor what this will mean in both federal and state law as it relates to employment issues. It also means that they need to be attentive to not having overly punitive or exclusionary policies.

Prohibiting people with a previous marijuana conviction from employment would unnecessarily limit the hiring pool of qualified candidates. This is counterproductive to the best interests of employers looking for the best people to hire and, given racial disparities in marijuana enforcement, also in creating racially diverse and inclusive workplaces.

The main point: this area of the law is in flux – so it’s important to keep up with the changes.

What It All Means For Employers

This interview makes one thing crystal clear: Employers face a difficult task when it comes to navigating the evolving – and sometimes conflicting – laws around marijuana use.  

The truth is that there’s no one answer to fit every company and every circumstance. That’s why you should always consult your legal counsel before establishing an employment drug-testing program.

Some employers choose not to screen for marijuana at all, yet they still want to screen for other substances. Employers can now choose an employment drug-testing panel that leaves out marijuana.   Find Out More

Lorenzo Robleto, Esq.

Lorenzo Robleto, Esq.

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Lorenzo Robleto, Attorney for GoodHire's parent company Inflection, attended the University of San Francisco School of Law and graduated with honors in Intellectual Property & Technology Law.

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