A Guide to Marijuana and Pre-Employment Drug Tests

The legal and social landscape around marijuana and pre-employment drug tests isn’t the same as it once was. Even compared to a decade ago, substantial changes have occurred. This shifting landscape in drug and alcohol testing necessitates a recalibration from employers. Once, marijuana existed in the public mind on the same level as drugs such as heroin and LSD. Though federal law has yet to change, many states and residents disagree.

These changes occurred slowly until a wave of reforms began. First, some states passed medical marijuana programs. Others began to decriminalize cannabis possession. Finally, we’ve seen the advent of recreational adult use laws. In many states today, adults can legally buy and use cannabis at any time. For employers, these changes represent new hiring challenges.

Many employers still require a pre-employment drug test. These tests are a standard part of background check policies nationwide. However, the changes we’ve seen raise an important question. Does considering cannabis use still matter? In this white paper, we’ll explore the answer to that question in depth.

Pre-Employment Drug Tests, Explained

Why are drug tests still seen as an essential condition of employment? Answering these basic questions first is important. Only from this foundation can we make a precise examination of marijuana testing. Let’s take a step back to consider these big-picture questions first.

What is a drug test for employment?

Employers may take many steps to assess job applicants and their suitability. Most companies use a background check as part of this process. Screening criminal records or verifying resume information is essential. Likewise, employers have a right to ensure a drug-free workplace. Drug tests help create that environment. Sometimes, the law may even require employers to use drug tests.

Drug use may negatively impact someone’s ability to do a job. It could also create severe safety hazards. Drugs might impair someone’s judgment or decrease their reaction time. Heavy use could impact general productivity and efficiency, too. Pre-employment drug tests help employers manage the risks associated with hiring drug users.

What does a pre-employment drug test for?

Contrary to popular belief, not all drug tests are the same. Not every test detects the same substances. There is no one drug test capable of detecting every illicit drug that could be in a person’s system. Instead, drug tests usually consist of panels. A drug panel refers to the substances a test can detect.

At backgroundchecks.com, we offer five different drug testing options to our clients. These include a range from a five-panel to an 11-panel test. The five-panel test screens for amphetamines, cocaine, marijuana, opiates, and PCP. The 11-panel test includes these five substances but adds others, such as barbiturates and ecstasy. A five-panel test is the most common type used by employers today. Visit our pre-employment drug test product page for more information.

What is the legality of employee drug testing?

Employers generally face few significant restrictions on pre-hire drug testing. However, more states have enacted restrictions on testing for marijuana. We’ll discuss this change in depth later in this paper.

All testing must take place in a consistent, objective, and fair manner. You can’t use drug tests to discriminate against applicants unfairly. For example, you cannot single out applicants for testing. Your policy should apply equally to all applicants without exceptions. If you plan to test, do so without regard to gender, race, age, background, or appearance.

As with background checks, informed consent is essential. You must get the applicant’s consent to be drug tested. You should also disclose your policy about any random or ongoing tests in the workplace. You can decline to hire someone if they refuse a drug test.

Ensure you always handle drug test results with confidentiality in mind. Have a qualified medical officer examine drug test results to rule out potential false positives. If an applicant tests positive, you may ask the candidate for an explanation. You may also choose to offer a second test. Always review local rules and regulations in your area for the latest changes to drug testing law.

Why should employers require pre-employment drug testing?

Drug use at work or home can lead to problems in the workplace. It can cause accidents, absenteeism, and reduced productivity. Heavy drug users might perform poorly at work or create conflict with others. Impairment can impact judgment, coordination, and more. These issues can create significant problems in the workplace. An individual’s use of heavy drugs could put others at risk of physical harm. At the least, it can impact team performance and productivity. Adopting a drug-free workplace policy is one way employers can manage these risks. Testing helps ensure safety.

Pre-Employment Drug Tests and Marijuana

There is still value in maintaining a drug-free workplace today. The reason to conduct pre-employment drug tests hasn’t changed or faded away. However, social attitudes and legal rules have undergone some significant changes. Whether marijuana still matters when hiring is an open question. It’s important to reckon with these changes today and plan for the future. Can and should these changes impact your policies?

Changes to Marijuana Legality

In 1970, the federal government made marijuana a “Schedule I” drug with the Controlled Substances Act. Schedule I drugs, according to the government, have a high potential for substance abuse. These drugs also do not have any accepted medical benefits. Today, science has shown that neither of these are precise facts about marijuana. Cannabis remains on Schedule I, but it may not be there for much longer.

In 2023, the Department of Health and Human Services issued a landmark recommendation. It suggested that the Drug Enforcement Agency should change marijuana’s classification. HHS suggests moving cannabis to the much less restricted Schedule III. These drugs still face control but have known medical uses. Though marijuana remains a federally illegal drug, these shifts indicate a growing potential for future legalization.

These changes come on the heels of a massive shift across the nation. Since the Controlled Substance Act was passed, attitudes about marijuana have reversed. The change began when California first legalized medical marijuana in 1996. Today, 38 states have medical cannabis programs. The District of Columbia and even three US territories have done the same. Additionally, 24 states and DC have fully legalized adult recreational marijuana use.

More states continue to explore full legalization. The federal government has not aggressively pursued state operations in decades. Along with these changes have come a wave of related reforms. For example, many states enacted automatic expungement laws to delete old cannabis convictions.

While the impact on drug testing and employment laws has been slower, some changes have occurred. That’s to say nothing of the increased likelihood that employers may see positive tests for cannabis. These changes accompany related shifts in societal attitudes.

Changes to Societal Views on Marijuana

Societal views on marijuana have undergone substantial changes in the wake of legalization. Once a drug found on the fringes of society, marijuana is now mainstream. The Centers for Disease Control most recently studied the issue in 2019. At that time, they estimated that more than 48 million Americans used weed at least once a year. That’s more than 18% of the population. In the intervening years, that number has likely increased.

A Pew Research Center study from 2022 looked closer at contemporary attitudes towards marijuana. A staggering 88% of adults think the substance should be legal in some form. 59% of survey respondents said both medical and recreational cannabis should be legal. Only 10% of people said it should remain illegal. These trends point to both increasing acceptance and increasing use. More and more, many people place cannabis usage on the same level as alcohol consumption.

Changes in Screening Practices

The changing social and legal views on marijuana require employers to rethink their screening methods. Should employers care about whether employees use marijuana when off-duty? It is a question many companies grapple with today. In some cases, the law has new guidance on the subject.

Currently, 14 states and Washington, DC, prohibit employers from taking adverse action against medical marijuana users. Authorized users who aren’t impaired on the job can’t have their medical use held against them. What about states with legal adult recreational use?

In New York and Nevada, employers cannot legally screen for marijuana anymore. It is not just adverse action that’s illegal; the tests themselves are, too. Exceptions exist only for testing because of reasonable suspicions and for federal requirements. The City of Philadelphia has also restricted such tests.

In other states, you can still use drug tests that screen for marijuana. However, you may be unable to use those results for adverse action. You can’t refuse to hire someone because of a positive cannabis test in these states:

• Arizona
• Delaware
• Connecticut
• Michigan
• New Jersey
• Oklahoma (if holding a medical marijuana card)

Employers must be aware of these local and state laws. They may significantly impact how you approach the drug testing process. Always be mindful of what you can legally test for and what you may consider.

What About CBD?

CBD is a non-psychoactive compound found in both hemp and marijuana plants. In recent years, products containing CBD have exploded in popularity. Because it is not psychoactive, it is not a scheduled or controlled supplement. In most areas, CBD products fall into the “supplement” category. Employers should avoid making any decisions based on CBD usage. There is no type of drug test to detect CBD unless the product contains traces of THC. In that case, a positive result for marijuana may occur. Employers should evaluate such results carefully.

Does Weed Matter Anymore?

Shifts in attitudes about marijuana began slowly but sped up quickly. Usage is more common today than ever before. These changes leave many employers facing one critical question. Does testing for cannabis even matter anymore? Should you discard marijuana results and focus only on other “harder” substances instead?

Drug tests can’t indicate where someone uses drugs. They also often can’t indicate impairment at the moment. Cannabis tests famously can detect usage as old as a month. With attitudes beginning to equate weed with alcohol, is it worth the effort to evaluate marijuana positives? There are two sides to this critical question to consider.

Benefits of Dropping Cannabis Screenings

There could be benefits for employers who drop cannabis screenings. If nearly a fifth of Americans use cannabis, one might view the problem as one of numbers. Employers are more likely to see positive cannabis tests today. That likelihood increases in states with legal recreational cannabis. Keeping this a barrier to employment could mean missing out on hiring genuinely talented individuals. Someone’s cannabis usage is less likely to speak to their quality of character today. Strict screening requirements could artificially limit your labor pool.

Changing what type of drug screening panel you use could translate to cost savings, too. You may spend less on drug testing and less time reviewing results. The costs of compliance might be lower, too. Voluntarily ending cannabis screening now means less time spent worrying about changing laws. You can still screen for other substances. Of course, you can always use a test if someone appears to be high on marijuana on the job, too. Employers may tolerate off-duty usage, but they never have to tolerate on-duty usage. In this way, policies come more in line with those about alcohol.

Different Perspectives for Different Areas & Industries

Today, there are many arguments in favor of dropping or modifying cannabis screenings. However, there are also other arguments, too. What if you work in an area where pre-employment drug screening isn’t restricted? You may still wish to exclude all drug use from your workplace. That remains your choice. Those who want a drug-free workplace may not find cannabis acceptable.

The location of your business may matter, too. Though cannabis is legal in some form in more than half of the United States, it remains illegal in many places, too. While societal views have changed, they haven’t changed everywhere. In states such as Idaho and Kansas, marijuana remains illegal. There are still harsh penalties for possession and use. Employers in these areas should preserve their policies to stay aligned with the law.

There are other regulations and needs to consider, too. The Department of Transportation requires drug tests that include marijuana for specific regulated jobs. Truck drivers, shuttle operators, and bus drivers must undergo special screening. You must continue to disqualify applicants who fail DOT drug tests. Likewise, employers who operate heavy equipment may want to avoid any potential for on-the-job impairment. Those who work with sensitive populations may wish to exclude all drug users. So long as there is no conflict with local law, it could make sense to continue screening for such businesses.

Charting the Future of Cannabis Screenings for Work

The landscape of cannabis legislation is very different from 20 years ago. In another decade, it’s likely to look even more distinct. Employers must confront these changes and consider the impacts on the hiring process. Does it still make sense to test for marijuana? The answer depends on the responsibilities, location, and sometimes the employer’s preferences.

You may operate where the law demands you alter your process. In other places, you may be in a gray area. Marijuana might be legal where you are but without any restrictions on drug testing. In such jurisdictions, it is vital to consider how relevant or irrelevant marijuana positives are for you. Likewise, the continuous changes to the law merit a close watch on potential impacts on your compliance efforts.

Each employer should examine their policies about marijuana and pre-employment drug tests today. The right policy can help you open the door to more talent—or prevent harm from impairment on the job. Whatever path you decide is best for your business, backgroundchecks.com provides the support and resources necessary for more thoughtful decision making.