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Your Drug Testing Program: Is Marijuana In or Out?

June 05, 2019 | By Accurate Background

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The U.S. unemployment rate continues to be remarkably low – 3.8% in March 2019. With a competitive labor market, some companies are struggling to fill positions and are re-examining their hiring criteria to adapt. In addition to salary, benefits and corporate culture changes, some companies are re-evaluating their drug testing policies in an effort to attract more workers. One such trend is the removal of marijuana from company drug testing programs. Is this change something you are considering at your organization? Let’s look at some considerations on the topic.

Why are employees testing if it’s legal?

Hold that thought. Marijuana is not legal everywhere and remains a Schedule 1 drug that is illegal under federal law. With employee safety and well-being top of mind, eliminating marijuana testing from hiring criteria eliminates a drug-free workplace environment. Employers are responsible for their employees during work hours, and by thoroughly screening each new employee, they mitigate risk associated with a potentially unfit candidate. Companies may also avoid legal liability when they have proof of drug-free employees.

While private employers have the freedom to choose their drug testing policy, drug tests are required in industries that are federally regulated. The Department of Transportation (DOT) and the Federal Aviation Administration (FAA) are two such entities that require drug testing.

Why are employers removing it?

To keep up with hiring demands, some companies in the hospitality and restaurant industry are removing marijuana from their drug testing screening. However, many companies are still testing for drugs such as cocaine, opiates, and amphetamines to ensure company and employee safety. Many employers are adding other drugs like ecstasy and semi-synthetic opioids, like Oxycodone, to their screening criteria.  AutoNation, one of the U.S.’ largest auto-dealers, decided to remove marijuana from their testing in 2018. AutoNation said they made the decision to remove marijuana to be more competitive in the labor market as well as keep up with the public’s evolving attitude towards the substance.

Consider employee protection laws

As of today, there are nine states plus the District of Columbia that have legalized the recreational use of marijuana. However, laws vary from state to state regarding discrimination in the workplace for marijuana use. For instance, on February 1, 2018, Maine became the first state to protect employees from marijuana discrimination at work. Employees can no longer be fired or not hired for marijuana use off the clock.  As these types of laws are put in place it is important to continue to evaluate how new laws may impact your current employment drug testing program.

Consult with experts

Ultimately, each employer must make the decision on a drug testing policy. It’s important to review your state’s laws and regulations as well as federal law. To ensure your drug testing practices are compliant, consult with both your drug testing vendor and your legal team to ensure there is no risk associated with your drug testing policy.

*The information provided above is strictly for educational purposes. It is not intended to be legal advice, either expressed or implied. Accurate Background recommends that you consult with your legal counsel regarding all employment regulations. 


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