Once upon a time, marijuana was viewed nationwide as an illicit substance on the level of heroin, LSD, and ecstasy. If you focus squarely on federal law, not much has changed: cannabis is still classified as a Schedule I drug by the Controlled Substances Act, which essentially sets the federal government’s priority list when it comes to the regulation and criminalization of drugs. However, recent years have seen a sea change in the world of marijuana, with a wave of states taking steps to decriminalize or even entirely legalize the use of marijuana. For employers that require a pre-employment drug test as part of their background check policy or that run routine drug tests on employees as a means of ensuring a safe, productive workplace – the changing tides around cannabis legalization have forced a big question: Does weed still matter as part of the background check process?
Pre-Employment Drug Tests, Explained
Before we delve into whether or not employers should still be figuring marijuana into their pre-employment drug testing, let’s look at an even bigger picture question: Why do employers use pre-employment drug tests in the first place?
What is a pre-employment drug test?
Most employers require some type of background check as part of their hiring process. These checks can encompass a wide range of information, from criminal history to past employment to driving history. In some hiring situations, drug testing figures into the same pre-employment vetting process as the rest of the background check. Some employers are required by law to conduct drug tests, while others do so voluntarily. In most cases, the idea is that drug use can have a negative impact on someone’s ability to perform a job, whether by impairing their reaction time and therefore causing safety and liability issues or by simply decreasing that person’s productivity and work quality. By giving hiring managers a way to detect drug use upfront, pre-employment drug testing can help employers avoid these and other risks.
What does a pre-employment drug test for?
Contrary to popular belief, not all drug tests are the same or test for the same substances. There is no one drug test capable of detecting every single illicit drug that could be in a person’s system. Instead, drug tests are usually classified based on a variety of “panels.” A drug panel refers to the substances for which the drug test is screening.
At backgroundchecks.com, we offer five different drug testing options to our clients, ranging from a five-panel test to an 11-panel test. The five-panel test screens for amphetamines, cocaine, marijuana, opiates, and phencyclidine PCP. The 11-panel test includes these five substances but adds barbiturates, benzodiazepine, methadone, propoxyphene, methaqualone, and ecstasy. To learn more about which substances each version of our drug test screens for, visit our pre-employment drug test product page.
What is the legality of employee drug testing?
Employers are generally allowed to conduct pre-hire drug testing so long as they do so in a manner that is consistent, objective, and fair. In other words, an employer would not be allowed to drug test just some candidates for a job based on who “Looked like they might be on drugs.” Instead, the employer should plan to require a drug test for any final candidate, regardless of their gender, race, age, ethnicity, appearance, or background.
Beyond simple consistency of implementation, employers planning on making drug tests a requirement for all new hires should follow several other ethical and/or legal guidelines as well. For instance, just like any other background check, informed consent is essential. The candidate must be informed up front about the pre-employment drug test requirement, as well as about any ongoing drug testing that may occur in the course of employment. They must consent to the drug test and be allowed to opt out and walk away from the job opportunity if they choose to do so. Employers should also do whatever they can to protect the privacy of the individual by making sure the results of the drug test – and any consequences – are kept confidential from other candidates, employees, or other parties of interest. Finally, if the candidate tests positive for drugs, the employer should 1) verify the results by testing again and 2) give the candidate an opportunity to explain the positive test.
Why should employers require pre-employment drug testing?
Proponents of pre-employment drug testing argue that it helps lead to better hires, for numerous reasons. Drug use on the job has been linked to accidents, absenteeism, reduced productivity, and poor performance, among other problems. Someone under the influence of drugs may not have the same level of judgment, reaction time, coordination, or other physical or mental faculties that they would while sober.
These issues can cause significant workplace problems that reach beyond the person who is using drugs. For instance, someone under the influence of an illicit substance while working may exhibit dips in performance, which can negatively affect team function, company culture, staff morale, and overall productivity.
On the more extreme end of the spectrum, an employee whose faculties have been negatively impacted by drug use can put others in physical danger. Factories or construction sites are examples of worksites that require the complete focus and competence of every member of the team, and if those things aren’t there, the risk of accidents – and of resulting injuries or deaths – rise considerably. Adopting strict drug-free workplace policies and requirements is one of the ways that employers keep safe worksites in these higher-risk industries.
Pre-Employment Drug Tests and Marijuana
The reasons for running a pre-employment drug test as part of your company’s background check policy have not faded away. There is still value to maintaining a drug-free workplace policy and having measures in place to make sure that expectation is set from the outset of employment. However, because drug laws have changed – and are still changing – it is important to reckon with how those changes can (and perhaps should) affect drug testing and drug-free workplace policy.
Changes to Marijuana Legality
As previously mentioned, marijuana was once considered an illegal drug on the level of heroin. In 1970, with the Controlled Substances Act, the federal government labeled marijuana a Schedule I substance. Under that law, the federal government held (and still holds today) that marijuana is a drug with a high level of potential for abuse and without any accepted medical benefit. The Controlled Substances Act still stands, which means that marijuana remains illegal on the federal level – even for medical purposes.
Despite the federal criminalization of marijuana possession and use, though, the discussion around the drug has shifted almost entirely over the past 52 years. That’s thanks to the states, which have passed laws that go against the federal position on weed. In 1996, California became the first state in the country to legalize marijuana for medical use. Since then, 37 states, four territories, and Washington, D.C. have all passed laws legalizing marijuana for medical use. The Rohrabacher–Farr amendment – a 2001 piece of federal legislation – bars the U.S. government from prosecuting individuals for violations of federal cannabis law if those individuals are complying with state medical marijuana laws. Additionally, 19 states, two territories, and D.C. have legalized marijuana for recreational use, and another 12 have decriminalized its possession and use.
These changes to marijuana legality are expected to continue in the future. There have recently been legislative talks in several states that could grow some of the numbers cited above. In Maryland, for instance, voters will get to decide in November whether to legalize recreational marijuana. In Kentucky, meanwhile, Governor Andy Beshear recently took executive action to form the “Team Kentucky Medical Cannabis Advisory Committee,” an advisory board that will collect feedback from Kentucky residents on the prospect of medical cannabis legalization.
Changes to Societal Views on Marijuana
As marijuana legalization has swept the country, perceptions and societal views on the drug have changed. In the big picture, the substance has gone from an illegal substance used quietly on the fringes to a mainstream product with a huge consumer base. For instance, CDC data from 2019 shows that 48.2 million Americans used weed at least once that year, equating to 18 percent of the population.
Medical marijuana, in particular, has been widely embraced, with most Americans now disagreeing with the Controlled Substances Act proclamation that cannabis has no accepted medical benefit. Per a Pew Research Center study from 2018, two-thirds of Americans believe that marijuana should be legal for both medical and recreational use, while some 90 percent believe cannabis should at least be allowed for medical purposes. Cannabis has been clinically proven to have positive pain relief benefits and other advantages for patients undergoing cancer treatment, dealing with chronic pain conditions, and more.
Between the acceptance of medical marijuana and the growing visibility and availability of recreational marijuana, cannabis has grown into a sizable industry. According to a report from Grand View Research, the U.S. cannabis market was worth $10.8 billion in 2021. In parts of the country where adult-use marijuana is legal, it isn’t uncommon to see multiple dispensaries in the same city or town. Many Americans, especially in these epicenters of legalization, have come to view marijuana more or less as they view alcohol: Something that adults can partake in so long as they do so in a safe, responsible fashion.
Changes in Screening Practices
The shifting of societal views and legal boundaries around marijuana has been accompanied by similar sweeping shifts in the way employers screen for and think about marijuana. If marijuana is now similar to alcohol – something that responsible adults can legally use at their leisure – then is it an employer’s business whether their personnel use marijuana, so long as they are not under the influence while at work?
That question is leading to some changes – though those changes aren’t necessarily keeping pace with legalization. Per Pew, 14 states in the country (plus Washington, D.C.) have laws banning employers “from discriminating against workers who use marijuana for medical reasons.” Only two of those states, though – New Jersey and New York – extend those protections to recreational marijuana users. Additionally, Nevada law prohibits employers from rescinding a job offer solely because a candidate fails a marijuana drug test. Advocates for cannabis legalization want more states to adopt legislation that protects workers who legally use cannabis from losing their jobs or being denied job opportunities. So far, though, progress has been relatively slow on actual legislative policy reform.
There have been local jurisdictions that have taken steps to implement protections that their states won’t. In January 2022, for instance, Philadelphia implemented an ordinance called “Prohibition on Testing for Marijuana as a Condition for Employment.” That ordinance makes it “an unlawful employment practice” for employers in Philadelphia to require pre-employment marijuana testing as a condition of employment.
These types of local and state legislation are worthwhile for employers to follow, as they can significantly impact what is or is not allowed as part of the background check process.
Does Weed Matter Anymore?
All the shifts around marijuana in our culture and our justice system have many employers asking the question: When it comes to pre-employment screenings, does weed even still matter? Or should pre-employment drug tests simply disregard marijuana and focus on other substances instead?
Advocates of dropping cannabis screenings argue, rightfully, that drug tests don’t necessarily screen for whether a person is using drugs on the job site or during work hours; just if they’ve used drugs recently. And while this approach can be effective if you are talking about still-universally-illegal substances like heroin, it doesn’t have the same effect when the drug in question is something that people are at their liberty to enjoy in their spare time. After all, employers don’t typically get a say as to whether their workers enjoy a drink or two in the evenings once they’re off the clock. Should they have a say in whether those same workers use cannabis outside the workplace?
Benefits of Dropping Cannabis Screenings
There are also some benefits to dropping cannabis screenings. The biggest of those is the simple fact of numbers. If approximately one-fifth of Americans use cannabis, then it stands to reason that using a positive marijuana test as a barrier to employment can significantly limit an employer’s applicant pool. Especially at this moment in time, when national unemployment levels are low, and employers are navigating a true job seeker’s market, cannabis screenings can have a negative impact on an organization’s ability to attract and hire talent.
Other benefits might include reduced cost (cutting cannabis screenings might mean a lower investment in the pre-employment screening part of the hiring process) and reduced compliance burden (as in, if an employer voluntarily drops cannabis screenings, they don’t have to worry about keeping up with the latest local or state laws on the subject).
Different Perspectives for Different Areas
While some arguments support dropping cannabis screenings, though, there are also counterarguments – particularly depending on where the business in question is based. The fact is that cannabis remains illegal for recreational use in more than half of the country. While it might make sense for companies in areas where legalization has occurred to consider dropping cannabis testing, organizations based in other parts of the country may prefer to keep a “better safe than sorry” approach until their laws change. Societal views on weed may have changed drastically, but the drug is still as illegal as it’s ever been in some parts of the country. In four states – Idaho, Wyoming, Kansas, and South Carolina – cannabis remains illegal and criminalized, with no exceptions for medical use, CBD, or anything else. As a matter of due diligence, it may still make sense for employers in these areas to test for cannabis as they always have.
The industry in which an organization operates also matters when the question of dropping cannabis screenings comes into play. For instance, the Federal Motor Carrier Safety Administration (FMCSA) and the U.S. Department of Transportation have requirements for drug and alcohol testing that employers must follow. These federal regulations apply regardless of where individual companies are based and regardless of the state laws in those areas.
Other industries where marijuana use on the job might be more likely to lead to accidents and injuries – such as the aforementioned construction or manufacturing sectors – may also wish to be more aggressive with their testing and adverse action when it comes to marijuana.
Business travel may also be a factor. While the U.S. has taken significant steps to legalize and decriminalize marijuana, other countries around the world are not necessarily on the same page. The recent arrest and imprisonment of WNBA player Brittney Griner in Russia shines a light on how drastically weed rules can vary worldwide. Griner was arrested in February in Moscow with cannabis vape cartridges in her luggage. Griner, who hails from Arizona, has argued that she uses marijuana for medical purposes, which is legal in Arizona (as is recreational use). But Russia has different laws on the subject that largely criminalize marijuana possession, and Griner also faced charges for smuggling drugs into the country. Griner was found guilty of those charges and ultimately sentenced to nine years in Russian jail – though, at the time of writing, the U.S. Government is working toward her release. In any case, the story highlights legal differences around the world. It should be a warning for anyone who regularly travels internationally – as well as a consideration for employers hiring jobs that involve international business travel.
Ultimately, whether or not it makes sense to test for cannabis as part of the pre-employment screening process depends on the employer. Some companies are legally required to do so as part of their industry. Others might view marijuana testing as a best practice to reduce safety risks or legal liability. Some may operate in areas where weed is still 100 percent illegal. However, because of the shifting landscape of laws around marijuana – including in the context of pre-employment drug screening – it is essential for employers to be aware of where things stand today and where they may stand tomorrow. The story of marijuana legalization is still being written, and pre-employment drug tests are one of the many things that will be impacted as laws and norms continue to change. In the meantime, backgroundchecks.com is here to help you navigate the challenges and complexities – and the pros and cons – of screening candidates or employees for certain substances.
At this point, 37 states legalized marijuana for medical purposes, and 19 have adopted full recreational legalization. These shifting tides of cannabis regulations, combined with evolving societal views on weed and its potential benefits, have also changed the conversation around pre-employment drug testing. These days, many employers are understandably asking whether they should even bother testing candidates or existing employees for marijuana.
In the latest white paper for backgroundchecks.com, we unpack this question from multiple angles, ranging from specific relevant laws to the pros and cons of dropping screenings. Whether your business is trying to navigate legal compliance or questioning the cost-benefit analysis of cannabis screening, this white paper is for you.
Visit backgroundchecks.com to download your free copy.
About Michael Klazema The author
Michael Klazema is the lead author and editor for Dallas-based backgroundchecks.com with a focus on human resource and employment screening developments