While many of us spent the last 18 months focused on the pandemic and trying to get life back to normal, many lawmakers around the country turned their attention to legalizing marijuana.
In 2021, Connecticut, New Mexico, New York, and Virginia legalized recreational marijuana use. That came right on the heels of legalization in New Jersey and South Dakota during 2020. Nineteen states have now legalized recreational use, even though as far as the federal government is concerned, marijuana use is still against the law.
These changes might lead some employers to relax their standards, but when it comes to hiring, these new and constantly evolving laws are creating headaches for HR teams. It’s getting harder to know if you can test applicants and employees, or if you should even bother.
Bill Current, president of Current Consulting Group, makes it his business to follow and understand all these changes. He was kind enough to bring us completely up to date on what employers need to know heading into this evolving world of legal marijuana.
EBI: Hi, Bill! Let’s start with all of the recent votes. Is marijuana legalization moving faster recently? If so, why do you think things are picking up?
Current: The marijuana legalization movement continues to score victory after victory and at a faster pace. States that originally only legalized medical marijuana are considering legalizing recreational marijuana. Politically right-leaning states like Utah and others are jumping on the legalization bandwagon. There are few holdouts when it comes to refusing to legalize pot. Part of the reason for this trend is momentum, which the legalization movement clearly has going for it. But another huge factor is the fact that the majority of Americans favor legalization and politicians read poll results. The younger the voter, the greater the likelihood they favor legalization and this, too, may apply to politicians.
EBI: A Pew Research Poll says 46% of adults in the US have ever used marijuana, but 60% want both medical and recreational use to be legal. Does that surprise you?
Current: It would have surprised me 10 years ago, but not nowadays. This phenomenon tracks with other social and cultural trends that lean toward tolerance and acceptance of lifestyles that the majority of people either do not live or participate in themselves. For better or worse, it’s more and more becoming the societal norm to abide by the mantra “live and let live.”
EBI: What does all of this mean for employers – especially those who hire in multiple states?
Current: The best advice for employers is to comply with the laws that apply to them. Multi-state employers should have addendums to their drug testing policy that reflect the different legal requirements imposed by each state in which they operate. But know this: employers still have the right to prohibit employees from bringing marijuana to the workplace, using marijuana while on the job, and being under the influence of marijuana while working. A new report came out in July that reviewed 80 studies on marijuana-related impairment and concluded that impairment typically lasts between 4 and 10 hours depending on the type of work being performed. This should be a wake-up call for employers who are tempted to stop testing for marijuana. Employers remain legally responsible for the actions of their employees while on the job and a marijuana-impaired worker is more likely to cause an accident or make a costly mistake or be less productive than a non-marijuana-using worker.
EBI: Any advice for how employers should be getting ready for legal marijuana? Should they be putting plans in place now, even if their state has not been affected?
Current: Employers, regardless of the state or states they operate in, should have a drug testing policy that clearly states that marijuana use by employees on the job will not be tolerated and that employees who are found to be impaired by marijuana while working will face some form of adverse employment action depending on applicable state laws. Now is the time to get those policies updated and communicated to employees.
EBI: Are there laws about what employers can or cannot do regarding drug testing as these laws start going into effect?
Current: Every state legalization law is unique. No two state marijuana laws are the same. For this reason, employers must become familiar with and plan to comply with each applicable law. But it is important to remember that testing for marijuana is still legal in every state regardless of the legal status of marijuana in a particular state. That said, some states place conditions on what employers can do when someone tests positive for marijuana. Nevada, for example, prohibits employers from refusing to hire an applicant solely on the basis of a positive marijuana test. Some states that have legalized pot prohibit employers from taking adverse employment action against an employee who tests positive for marijuana unless the employer can prove that the individual was impaired by marijuana at the time of the test. Of course, a positive drug test result doesn’t legally or scientifically prove someone is impaired. In these circumstances, employers must base adverse employment action on a preponderance of factors (poor job performance, increased absenteeism, etc.) in addition to a positive marijuana test when deciding to terminate or suspend employment, for instance.
EBI: What is the best source of information for employers to watch so they can always be up to date?
Current: The Current Consulting Group tracks all state and federal legislation that could impact workplace drug testing and puts out a monthly legislative update, which, of course, includes marijuana legislation. Also, through our online state drug testing law database, Current Compliance, subscribers have access to thousands of laws, case law decisions, and regulations. All of Current Consulting Group’s information is available through EBI.
In Part Two of our discussion, Bill Current will give specific advice to businesses of all sizes on how to move forward with a drug testing program.
As EBI continues to monitor evolving marijuana laws, we’re also working diligently to deliver best-in-class resources and drug testing solutions. We recently achieved a Consortium/Third-Party Administrator certificate of accreditation from the National Drug & Alcohol Screening Association for meeting the highest industry standards for drug and alcohol testing. EBI is one of only ten service agents that have received this honor, given to providers who exemplify the management of an employer’s Department of Transportation drug and alcohol testing program.
We are committed to helping employers navigate changing marijuana laws. If you have any questions, please reach out to our team.
Jennifer Gladstone is a news anchor and journalist with more than 20 years of experience in front of the camera. She's worked in several markets, large and small, and has performed nearly every task needed in a newsroom. As EBI’s Screening News Editor, she keeps EBI’s customers and blog subscribers up to date on the latest screening news and legislative alerts affecting companies of all sizes.