More Employers Drop Preemployment Pot Testing

You are in a fantastic time to seek work.

Employers are having a hard time finding enough workers to fill jobs. Employers are increasing wages in order to lure qualified candidates.

They’re also finding another good way to entice prospective hires: excluding marijuana from pre-employment drug tests or eliminating drug tests altogether. Employers face many state and federal laws and court rulings when considering adopting or revising their marijuana screening policies.

The Great Resignation

Tens of million workers were laid off during the initial stage of COVID-19’s pandemic in 2020. But strange things began to occur as the economy started 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. The workers were well aware of the fact that the economy was recovering and they needed to be available for employers.

Pot Screening for the Slow, then Fast, Decline

You may also notice that cannabis legalization is expanding across the country. Although most employers still plan to conduct preemployment drug screenings, some say that they will now remove marijuana from these panels.

Some people taking this step may even be using it to recruit. 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.

Since the 1980s, when President Ronald Reagan required it for federal employees, preemployment drug screening has been in place. The practice was adopted by private sector employers, with more than 20% doing it in 1987. The practice hit a peak in 1996 when more than 66% of employers required it. Today, about 58% do.

Preemployment drug screening has also become increasingly targeted. Preemployment drug screening is more targeted and employers are limiting the selection to those jobs which require safety considerations, such as machines or driving motor vehicles.

When COVID-19 was introduced in 2020, the tests dropped sharply. Seven percent dropped testing altogether. Current Consulting Group conducted a survey of employers to find that the percentage who removed marijuana pre-employment drug testing almost doubled between 2020-2021, going from 5% up 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 Wide Acceptance

Marijuana is now legal for medical use in 37 states and for recreational use in 18, and Gallup says that 68% of Americans now support legalization.

Employers may find that halting marijuana screening is a good way to fill positions. The Current Consulting Group survey found that marijuana use is a major motivation.

However, stopping preemployment marijuana testing can pose risks because pot continues to be illegal at federal levels. Employers run the risk that they will sanction illegal drug use if testing is stopped.

This risk is especially acute for employers who rely heavily on federal funding, such as managed-care providers. While the likelihood of an investigation is currently low, this could change with a new administration.

However, many states that legalize cannabis prohibit applicants or workers from being penalized for positive tests. New York City was the first to ban employers from testing in 2020. There are exceptions for specific work types. Philadelphia did the same in January 2018. Some jurisdictions also ban preemployment marijuana screening of workers, such as the City of Kansas City or St. Louis County, Missouri.

Employers still have the right to test for pot in any state where it’s legal. These states have protections in place for those who get fired for positive results.

The legal environment in marijuana-legal states can make it confusing for both employers and employees. For both, a wise step may be to speak with an experienced employment attorney who is knowledgeable about this complex area of law.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

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Cyndy Lane

Cyndy is business journalist with a focus on entrepreneurship and small business. With over a decade of experience covering the startup and small business landscape, Cyndy has a reputation for being a knowledgeable, insightful and approachable journalist. She has a keen understanding of the challenges and opportunities facing small business owners and is able to explain them in a way that is relatable and actionable for her readers.