Welcome to the Daily Dose, where we delve into a hotly debated topic that has been making waves across industries and communities alike: the progressive shift of employers dropping pre-employment cannabis testing. As cannabis legalization continues to gain momentum in various regions, companies are reevaluating their approach to drug screening policies. In this article, we'll explore the reasons behind this significant change, the potential benefits and challenges it presents, and the impact it may have on both employers and job seekers. So, grab a cup of coffee and join us as we navigate through the evolving landscape of cannabis testing in the workplace.
History of Pre-Employment Drug Testing
The history of pre-employment drug testing can be traced back to the late 1980s and early 1990s, as part of the United States' response to the "War on Drugs" campaign. During this period, there was growing concern about drug abuse in society, and the government, along with various industries, sought measures to address this issue.
The Drug-Free Workplace Act of 1988 was a crucial catalyst for the widespread implementation of drug testing in workplaces. This federal law required certain federal contractors and grantees to maintain drug-free workplaces as a condition for receiving government contracts. While the law did not explicitly mandate drug testing, it encouraged employers to adopt drug-free policies, and many began to incorporate pre-employment drug testing as a means to demonstrate compliance with the Act.
In the early 1990s, pre-employment drug testing gained further momentum as businesses across various sectors voluntarily embraced the practice. The reasoning behind this was to ensure workplace safety, reduce accidents and injuries, improve productivity, and maintain a drug-free work environment. Companies believed that drug testing would help them identify potential candidates with substance abuse issues and, consequently, prevent potential problems down the line.
Controversial Practices
Over time there has been a growing debate about the effectiveness, fairness, and ethics of pre-employment drug testing. Critics argued that drug testing might not accurately reflect an individual's ability to perform a job and that it could disproportionately impact certain demographics. Additionally, with the increasing acceptance of medical and recreational cannabis, especially in some U.S. states and other countries, the debate over the inclusion of cannabis in drug tests has intensified.
Changing Practices
To adapt to the changing legal and social climate, some employers have chosen to abandon pre-employment marijuana testing in jurisdictions where cannabis is already legal. 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.
This shift in attitude is not limited to the corporate world alone but has extended to the world of professional sports. Notably, the National Basketball Association (NBA) recently struck a deal with its players' union to remove marijuana from its list of prohibited substances. Other sports leagues like Major League Baseball and the National Hockey League have also relaxed their marijuana testing protocols in recent times.
Legislative Protection
There are several states in the United States that have taken the issue of testing employees for cannabis into their own legislative hands to create legislation regarding employers and cannabis testing.
Nevada
Assembly Bill 132, which took effect on January 1, 2020 in Nevada, prohibits certain employers from rejecting job applicants solely based on a positive cannabis result from a pre-employment drug screen. Specifically, the law states that it is unlawful for any employer in Nevada to fail or refuse to hire a prospective employee due to the presence of marijuana indicated in the screening test results.
However, it's important to note that the law does not apply to prospective employees applying for specific safety-sensitive positions. Examples of such positions include firefighters, emergency medical technicians, and federally licensed drivers. In these safety-sensitive roles, employers may still enforce drug screening policies regarding marijuana usage as a condition for employment.
California
Starting January 1, 2024, California law will prohibit most employers from penalizing or discriminating against applicants or workers who use cannabis outside of work and away from the workplace. Currently used drug tests that detect cannabis molecules will no longer be valid for terminating a worker, restricting hiring, or penalizing an employee since these tests do not indicate impairment on the job. Specifically, AB 2188 makes it illegal for an employer to discriminate against a person based on their use of cannabis outside of work and away from the workplace and non psychoactive cannabis metabolites detected in employer-required drug screening tests, such as hair, blood, urine, or other bodily fluids.
The governor of California expressed that these cannabis bills aim to address the historical impacts of cannabis prohibition and fully embrace cannabis legalization in communities across California. Cannabis was legalized in California in 2016 through a ballot initiative.
Montana
In 2021, the Montana legislature passed a law resulting from a voter initiative that brought significant changes to existing legislation in Montana and addressed the implementation of I-190, which legalized marijuana. One crucial aspect for employers is the amendment to Montana's definition of "lawful products," now including marijuana. Consequently, employers will be barred from taking negative actions against employees for using marijuana lawfully during their off-duty hours, with some exceptions outlined in the law. Although the new law preserves an employer's right to prohibit on-duty marijuana use or possession, it explicitly limits the employer's ability to solely rely on a positive marijuana drug test as a basis for punitive measures.
While drug testing remains permissible, employers cannot reject job applicants or penalize employees solely due to marijuana use or a positive test result. In most cases, evidence of impairment during work hours will likely be required to support any adverse employment actions once the law is in effect.
Rhode Island
Rhode Island is one of the minority of states that offer employment protections to employees who use marijuana outside of work hours. Unless evidence of current impairment is present, the Cannabis Act significantly limits an employer's ability to take adverse action based solely on a positive drug screen for cannabis from applicants or employees. While employers can still enforce policies prohibiting cannabis use during work hours, including medical cannabis, certain aspects of the law raise questions about the effective implementation of such policies.
In essence, the General Assembly has restricted Rhode Island employers from disciplining employees for lawful cannabis use during their off-duty time. As a general rule, employers cannot fire or take disciplinary action against employees for using cannabis privately and lawfully outside the workplace, as long as the employee is not under the influence of cannabis while working. Consequently, employers may face limitations in acting upon pre-employment drug tests that show positive results for marijuana use.
Michigan
Recently, the Michigan Civil Service Commission made a significant rule change that will impact drug screenings for marijuana in the state's job application process. Under the new rule, applicants for many state jobs will no longer be automatically disqualified if they test positive for cannabis. This overturns the previous state policy that deemed marijuana use as a disqualifying factor for state positions. However, it's worth noting that some positions will still require applicants to pass a marijuana screening before being hired.
With this rule change, cannabis will now be treated similarly to alcohol for many state job applicants. Pre-employment drug screenings will continue to check for substances like cocaine, opiates, amphetamines, and phencyclidine (PCP). The new policy will take effect on October 1 and also includes the elimination of the current rule that bars applicants who test positive for marijuana from applying for any other state job for a three-year period. This move marks a notable shift in Michigan's approach to marijuana testing in the context of state employment.
As more and more states legalize cannabis, both medical and recreational, we may see pre-employment testing being eliminated across the board and better protection for after hours cannabis use.
CBD and Drug Testing
Easing of laws regarding cannabis pre-employment and after work use is not only a win for those who enjoy traditional cannabis, but also those who use certain CBD products. CBD, or cannabidiol, is a non-intoxicating compound derived from the cannabis plant, and it is widely used for its potential therapeutic benefits. This easing of laws means that individuals who use CBD products containing only trace amounts of THC, like full spectrum CBD, can have greater confidence in their ability to pass drug tests and secure job opportunities without fear of being unfairly penalized for their legal and responsible use of CBD. As laws and regulations continue to adapt, striking a balance between workplace safety and respecting the rights of employees who use CBD is crucial, ultimately promoting a more inclusive and fair job market for CBD users.
For those who want to consume CBD without the worry of testing positive on a drug test, we recommend using only broad spectrum CBD or CBD isolate as these kinds of products do not contain any amounts of THC.
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Cannabis Usage in Employees
In conclusion, the landscape of cannabis drug testing for jobs is undergoing significant shifts, reflecting changing attitudes toward cannabis and its derivatives like CBD. As more states legalize cannabis and hemp-derived products, employers are reevaluating their drug testing policies to strike a balance between workplace safety and respecting individual rights. This evolution is particularly beneficial for CBD users, as regulations focusing on THC content in cannabis products allow them to navigate the job market with greater confidence.
As we move forward, it is essential for employers to remain informed about the latest laws and regulations, ensuring fair and inclusive hiring practices while prioritizing workplace safety. Embracing these changes can lead to a more progressive and harmonious employment environment for both employers and job seekers alike. With the dynamic nature of cannabis legislation, ongoing dialogue and awareness will be key to fostering a constructive and respectful approach to drug testing in the workplace.
