Can You Screen for Marijuana? It’s Complicated

Employers once knew just what to do. The drug-free workplace was everywhere, and companies could screen prospective hires for a host of drugs, including marijuana.

Things are now much hazier. Marijuana is legal in some capacity—either recreationally or medically—in all but three states. Some jurisdictions have completely decriminalized it, some allow only medical use, and some localities, like New York City, have rules forbidding companies from testing for it for hiring purposes. 

If Congress passes the MORE Act—for Marijuana Opportunity Reinvestment and Expungement—things could get a bit simpler again, as it would essentially legalize marijuana and create a uniform standard across the 50 states. The bill passed the House of Representatives in 2019, but died in the Senate. It’s been reintroduced this year and may be picking up steam. 

Until then, however, companies need to consider whether they want to screen new hires and employees for marijuana, and how they can comply with the laws in all the locations where they may do business. 

Companies need to be proactive and start having these conversations internally with human resources, with their legal departments, and with their operations leadership. It’s not too early to have a plan ready for deregulation. 

As companies prepare to navigate the changing marijuana landscape, they need to think of it in two ways. First is the regulatory perspective, where you look at what’s required under the law. And the other side of the coin is almost a philosophical angle where companies should be thinking, “What kind of employer do I want to be? What kind of workplace do I want to provide? What should I do from an ethical perspective?” 

Not One-Size-Fits-All

As an employer, when you're deciding what your marijuana screening policy will look like, it will depend on your industry and the positions for which you’re hiring. Manufacturers will likely take a different approach than recruiting firms and ad agencies where folks are sitting at desks all day. 

Your approach will likely have an impact on recruitment. Employees see the state laws; they know where marijuana is legal. They may also know which companies perform drug screens. Talented folks who may dabble occasionally in marijuana will be more attracted to companies that don't assign importance to a positive marijuana screen—or don’t screen altogether. 

We’ve already seen some big employers take action. Amazon, the second largest private employer in the country, announced in June it would no longer screen job applicants for marijuana, “except for those applying for positions regulated by the Department of Transportation—a category that includes delivery truck drivers and operators of heavy machinery,” NPR reported. 

Take note, manufacturers: That’s a big exception. Alcohol is legal, but employees can’t drink on the job and are expected to come to work sober. Companies typically test for alcohol after an incident, and marijuana tests could remain for those situations as well. (Employers need to be careful, however, that they’re not looking to regulate employees’ off-duty behavior. Fortunately, there are tests, such as oral fluid testing, that are very effective in detecting very recent drug use, particularly marijuana.)

In June, UAW shop chairman called on General Motors to stop screening for cannabis use to address hiring shortages, the Detroit Free Press reported, and a GM spokesman told CNN Business the company is reviewing the issue. But last year in Southern California, S. Bravo Systems, which makes containment tanks for gas stations, turned down five qualified potential employees after they all failed a drug test for marijuana on the same day. 

“We have machines that cut steel and could cut a limb off,” CEO Paola Bravo told the Los Angeles Times. “So anyone with a trace of drugs is disqualified. If something happened, I would be held liable.”

Know the Rules 

Some industries are federally mandated to test. In the thicket of regulations, you should know that those federal rules take precedence over state laws. Some industry licensing requirements also mandate screens, such as FINRA’s rules for brokers and others in the financial field. Until the MORE Act passes and marijuana is removed from the Controlled Substances Act, then companies in those fields will have to test for marijuana.

Just follow these simple guidelines: 

• If you’re not required to test, and you don’t want to, then it’s easy. Don’t test. 
• If you want to test, but you’re in a place that doesn’t allow it—don’t test. You have to follow the rules. (Such state and local laws typically have exceptions that allow testing if it is required by federal or state law. NYC's ban on pre-employment marijuana testing, for example, also allows testing for certain positions including police officers, positions supervising medical patients, positions requiring a commercial drivers license, positions supervising or caring for children, etc.)
• If you’re in an industry that requires testing, test. But you may not have to test everyone. See if the rules allow you to vet potential employees by position type. Not all roles need to be screened for marijuana, just those in which the position reasonably requires it. For instance, Amazon is still testing its drivers. 

We’re in the midst of a sea change in how society views marijuana. Where it was once almost uniformly taboo, it’s now gaining acceptance in many corners. The most difficult time to manage policies, however, is in the midst of great change. Until we have a consistent set of rules, companies need to tread carefully. Consider your goals for your workplace. Think about what industry you’re in, and all of the places you do business. Then take a look at all the federal, state and local laws and regulations that may come to bear on whether you’re allowed to screen for marijuana, and document that process in your company’s hiring policy.

Elizabeth McLean is an FCRA-compliance attorney and general counsel at GoodHire, a leading employment screening provider. An expert in the background screening legal landscape, she follows new legislation and court decisions to advise the company on processes that follow compliance best practices.