Policy Changes and Labor Challenges Mean Fewer Drug Tests

Few social changes have come about as rapidly as shifting public attitudes towards the use and legalization of cannabis products. In 2010, a Pew Research poll found that more than half of all Americans opposed marijuana legalization. By the end of the decade, only one-third of respondents to a similar poll said that they opposed legalization—most respondents said that they believed the substance should be legal for either recreational or medical use.

That shift in attitude has created tangible changes in policy. Eighteen states have now fully legalized recreational marijuana, and many more have put official medical marijuana programs in place. While these changes have satisfied advocates nationwide, they have created additional challenges for employers that use drug screening as part of their hiring process along with employee background checks.

Drugs tests can't easily tell a person's state of intoxication in the moment, but they can flag use that may have occurred weeks before. Many employers have continued to use drug screenings and deny applicants who test positive for any substance, including marijuana. However, labor shortages and market pressures created by the COVID-19 pandemic on top of new regulations are forcing a change in the status quo.

In New York, the state Department of Labor issued new rules banning the testing of applicants for marijuana except in specific circumstances explicitly required by law. While the department did carve out some exceptions, the intent is clear: employers should not discriminate against users of a substance that is now legal for adults within the state. 

It remains unclear how the rule will impact businesses that seek out drug screening services offered by providers such as backgroundchecks.com. Test panels usually search for an array of drugs at once, including marijuana. Testing providers operating in states that choose to adopt rules similar to New York's may need to reformulate their panels to include a cannabis-excluding screening, or employers may receive guidance to disregard cannabis-related results.

Even in the absence of state action, many private employers are moving away from denying job applicants based on positive marijuana tests. Both Amazon and Walmart made high-profile announcements stating the cessation of their pre-employment testing for marijuana use. While the companies will continue to screen for drugs that remain illegal, cannabis will no longer mean disqualification from a job opportunity. Removing this barrier to employment is a necessary step for many employers in the current market, in which job openings far outpace the number of applicants.

With additional states contemplating legalization or the expungement of past marijuana convictions, employers can anticipate new rules coming soon. For businesses that intend to continue using drug tests during the hiring process, it will be essential to monitor these developments and prepare to make changes.