The Bud Stops Here

January 14, 2020

Policies and procedures on this topic can vary from business to business.  All content provided on this site is for informational purposes only.

In staffing, we often find ourselves in our own hazy state when navigating through client conversations around pre-employment screening.  While some clients are mandated to conduct drug testing on anyone working in their facilities, others have no practice on conducting any sort of pre-employment screening and there are variations of policies and practices all along the spectrum.

This year, New York City and Nevada will prohibit employers from considering positive pre-employment marijuana screens when making hiring decisions, although exceptions apply to safety-sensitive roles. While more than 30 states and Washington D.C. have comprehensive medical marijuana programs, some states allow employers to refuse to hire medical marijuana users – but some offer protection for card carriers. Meanwhile, 11 states and the District have legalized cannabis for recreational use.

Todd Higey, General Counsel for ESS (Employment Screening Services), gave some interesting insight into what he’s seeing among their customer base:

  • Some employers are completely pulling THC from their drug testing panels.
  • Based upon the needs of employers who utilize safety-sensitive workers, Higey expects that, in jurisdictions prohibiting or restricting preemployment testing for THC, employers will still test for THC when conducting reasonable suspicion and post-accident testing.
  • When conducting a reasonable suspicion or post-accident test, he expects employers to use an oral fluid test, which identifies whether the psychoactive ingredient, THC, is in the worker’s system. This anticipated shift to oral fluid THC testing will be accelerated by the recent authorization of oral fluid specimens in federal workplace drug testing programs.

Higey also made a few recommendations which might prove helpful to employers struggling with how to handle certain situations:

  • On programs aimed at giving those convicted of marijuana-related offenses a “second chance” at employment (“2nd Chance Programs”):
    • Make sure the 2nd Chance Program is compliant both with state drug-free workplace laws and state legislation protecting medical marijuana use.
    • Give consideration to hiring the worker on a probationary status and conduct a certain number of unannounced tests during the probationary period, similar to what might occur during a Substance Abuse Program.
    • At the end of the probationary period, do a hair follicle test to detect drug use up to a 90-day window prior to the test date. 
  • Be mindful of safety-sensitive positions and how any changes to your policies might impact those positions.
  • In states that provide employment protections for marijuana users, proving intoxication is critical – a mere positive alone won’t be a sufficient basis for an adverse employment action. Use of oral fluid testing in conjunction with classic reasonable suspicion observations will likely prove to be the best method for demonstrating intoxication.  Proving chronic intoxication will be much more difficult, even though medical science has demonstrated that chronic use of marijuana undeniably leads to cognitive deficits.
  • Where the use of medical marijuana is concerned, it will be important for employers to utilize an interactive process similar to what is used in the ADA context to determine if a reasonable accommodation of the chronic off-duty use of marijuana exists that does not impose an undue hardship on the employer.

 

How should employers handle this?

Employers are likely to remain faced with changing legislation regarding the use of marijuana for recreational or medicinal purposes, coupled with the ongoing challenges of finding otherwise qualified Talent.  While legislation, safety and employee and customer sentiment on the matter must be considered, 2020 might be the year some employers reconsider their existing drug screening practices to modernize their approach or merely to move toward compliance. Regardless, it’s suggested that every employer consult with their legal counsel and/or drug screening partner before memorializing anything.  

If the above makes your head spin while contemplating how your company will meet your hiring needs this year, consider reaching out to ITAC.  With nearly 20 years in the business of recruiting, ITAC is available to assist you with temporary / contract, contract-to-hire and direct hire staffing in Information Technology, Accounting and Finance, Engineering and Corporate Professional roles.

Special thanks to Employment Screening Services and General Counsel Todd Higey for their insight.