One of the key trends affecting hiring practices in 2020 is the continued legalization of marijuana across states and municipalities. No longer considered universally forbidden, marijuana in its different forms has become a commonly used substance for many. Despite the fact that, technically, marijuana is still considered an illegal substance by the US Controlled Substances Act, 33 states have legalized marijuana use for medicinal or recreational use or both.

Recently, the sports world made waves in the marijuana debate. In December 2019, Major League Baseball revised its drug screening program to exclude marijuana from its list of banned substances, effective at the start of 2020 spring training. Players who would have been sanctioned or disciplined for testing positive for marijuana under the old policy will no longer face penalties. 

In addition to its impact on professional sports, the legalization of marijuana also has implications for the workplace. As new laws are introduced, there will be continued pressure for organizations to rethink drug screening policies and revise them so that they don’t conflict with state or local law. Here are some considerations for how the legalization of marijuana will impact your industry and organization.

New Drug Testing Restrictions

States aren’t only legalizing marijuana; they’re also passing laws about whether marijuana can be included in pre-employment drug screening. The following state laws are just a few examples:

  • Nevada prohibits the testing of job applicants for marijuana, with exceptions for positions such as emergency responders or any positions that the employer determines can affect the safety of others. 
  • New York City passed a law stating that pre-employment marijuana testing would be considered an “unlawful discriminatory practice” as a condition for employment.
  • New Jersey and Oklahoma bar employers from taking adverse actions against individuals who test positive for medical marijuana, with exceptions for safety-sensitive positions.

The merits of pre-employment and workplace drug testing are many, with a key benefit being the prevention of injury to employees, patients, and the general public. However, new marijuana laws, including those that prohibit testing for the drug, require employers to review and update existing drug screening policies for compliance. Organizations with a drug screening program in place must make sure not only that testing is in keeping with company policy, but also that it meets local requirements in every state where employees are hired. Depending on the location, employers hiring in two or more states must now either have different drug testing practices for specific locations or revise the entire program so that it is in line with applicable laws no matter the location. For some organizations, it may be easier to follow MLB’s example and remove marijuana from the drug screening program altogether.

Different Approaches to Screening for Marijuana

As laws become more marijuana-friendly, employers are considering the many different testing options available and the company policy implications of marijuana use both on- and off-duty. In some industries and positions, similar to the MLB, testing positive for marijuana may not be just cause for adverse action. Given that THC, the active ingredient in marijuana, can be detected in the body for up to three days or several weeks after use, some organizations may not deem it necessary to use the most sensitive testing methods available, such as hair testing. In certain cases, it simply may not be helpful or necessary to determine if an individual used marijuana, particularly because the THC in their system could be from one-time use weeks before testing. 

In addition, in some industries, there are clear guidelines for drug screening. The transportation industry, for example, must follow federal guidelines for drug screening. Others, such as federal agencies, must follow guidelines set by the Substance Abuse and Mental Health Services Administration (SAMHSA), part of the U.S. Department of Health and Human Services (DHHS). 

Industries that don’t have specific drug screening guidelines have a range of testing options, each with its own benefits and reliability. For example, urine, blood, and hair tests each offer different results and levels of sensitivity.

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Creating and Communicating a Workplace Policy for Marijuana

No matter your industry, there are many reasons to have a drug-testing program, including to build a productive workforce, to reduce drug-related absenteeism, and to support the development of a safer workplace. In fact, research shows that marijuana use is linked to factors that negatively impact safety and productivity in the workplace. According to a study by the Drug-Free America Foundation, which compiled research from numerous sources, marijuana users have 85 percent more injuries at work and a 78 percent increase in absenteeism compared to non-users. No matter your organization’s position on marijuana in the workplace, all employers can benefit from having a clear drug screening policy that articulates that position as well as the parameters and methods for drug testing.

When it comes to developing a comprehensive drug testing policy, it is a good idea to carefully balance applicable legislation with organizational goals for a safe and productive workplace. Whether or not you eliminate marijuana from your drug-testing program, your drug screening policy should clearly explain organizational drug testing goals, what substances you test for and when, and the different actions that can be taken after testing is completed. To develop a robust drug screening policy that addresses marijuana, the policy should also:

  • Explain how the policy aligns with federal, state, and local laws for marijuana testing
  • Inform employees about the workplace-related impairing effects of marijuana
  • Describe any accommodations provided for individuals using medical marijuana
  • Note instances in which drug screening will include testing for marijuana (e.g., during pre-employment, on a random basis, upon reasonable suspicion, or after an accident has occurred)

Implementing Your Drug Testing Program 

Given the trend of continued marijuana legalization, including laws that ban pre-employment testing for it, it is important to proceed carefully when designing and implementing your drug testing program. Working with a reputable background screening company is a great way to build a stronger understanding of the laws that impact your industry. A knowledgeable screening provider can also guide you in building a drug screening program that is both compliant and effective in providing accurate results in an efficient timeframe. Your background screening partner can help you:

  • Build a drug-testing program that aligns with state and local laws as well as organizational policies and goals
  • Conduct scheduled or random drug tests for marijuana and other drugs
  • Connect candidates and employees with a network of drug-testing facilities across the country
  • Leverage paperless drug-screening technology that enables easy ordering of drug tests, appointment scheduling, viewing of results, and more

Drug screening in Major League Baseball, and indeed in any organization, will likely continue to evolve as attitudes about marijuana change and new laws are passed. Building a safe and drug-free workplace that protects employees, customers, patients, and others is still possible in the age of expanding marijuana legalization. If you work with a trusted background screening partner, they can help you develop a comprehensive drug screening policy, understand the various testing options, and navigate the laws that impact your industry. With the aid of expert knowledge and resources, you can execute a drug screening program that meets organizational needs now and into the future.

 

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