Pre-Employment Drug Screening: Where Marijuana Testing Is Going, Federally and State by State
Marijuana legalization has been a growing trend on the state and city/jurisdictional level for some time. However, even though marijuana remains illegal federally, there are new signs the federal law may change in the near future.
As marijuana legalization continues to become more widespread, you’ll need to review your existing drug screening policies and make sure your screening practices comply with laws in the locations where you hire.
How Marijuana Legalization Has Progressed So Far
On Election Day 2020, several states—including Montana, New Jersey, Mississippi, and South Dakota—passed new laws to legalize marijuana. However, they were only the latest to do so. Up until then, more than half of the U.S. states already had marijuana legislation on the books.
As the tide turns towards further legalization, the possibility of a federal law has moved closer to reality. For example, in December 2020, the House of Representatives passed a law to decriminalize marijuana at the federal level. Although the law would need to be passed by the Senate and signed by the president, President Biden has already signaled support for decriminalizing marijuana.
There is also support from voters for nationwide legalization. According to a 2021 Pew Research Center survey, a combined 91 percent of adults believe marijuana should be legal, either for medical use only (31 percent) or for medical and recreational use (60 percent).
The Latest State Marijuana Laws
Ever since California became the first state to legalize medical marijuana in 1996 (the law has expanded to include recreational use and possession since then), other states have legalized both medical and recreational marijuana use.
Though most states have legalized at least medical marijuana, legislative changes continue as states expand their laws to include the recreational use, sale, and cultivation of the drug. Some of the more recent marijuana laws offer a glimpse of what the future may bring.
The latest developments include the following:
- New York legalized recreational marijuana on March 31, 2021, with retail sales expected to begin in 2022.
- On April 12, 2021, New Mexico legalized the recreational use of marijuana, with retail sales already approved to begin April 2022. In addition to possessing and using marijuana, adults in the state can also grow their own plants.
- In March 2021, Virginia amended its medical marijuana law effective July 1, 2021, allowing adults to possess up to an ounce of marijuana for any use.
Virginia’s law is particularly noteworthy because of its implications for background screening and drug testing. While the law provides some exemptions for employers who want to test for marijuana drug use, it will also allow individuals to have past misdemeanor marijuana convictions on their criminal records automatically sealed.
Top Marijuana Testing Considerations for Employers
Marijuana legalization isn’t merely a social issue; it has direct implications for employers and the hiring process. As Matt Jaye, Corporate Screening VP of Business Development, recently wrote in Corporate Compliance Insights, “The continuing trend to legalize marijuana for medicinal or recreational use will spur organizations to revisit existing drug screening practices.”
Keep in mind the following factors when evaluating your pre-employment drug screening process.
Marijuana laws vary greatly from state to state.
Marijuana legalization looks different in every state. Some states have legalized only certain forms of the drug, and each state also has different exemptions. Therefore, if you have employees working in different locations, you’ll either have to create different drug screening policies to comply with the laws in each location, or create a blanket policy and practices applicable to all locations.
In the new remote workplace, you may also be hiring across geographies, and your hiring and drug screening practices will need to incorporate requirements from multiple states. As Bridgette Klein of Willory, an HR staffing consultancy and Corporate Screening strategic ally, notes, “The nature of work has gone very national. With remote work, employees can be based in a state with one set of marijuana laws, but work for a company in another state with a different set of laws. Employers need to take this into account when conducting drug screening during the hiring process.”
Even if employees work on-site in one location, you may still need to keep pace with marijuana laws in other states. For example, employees in Connecticut (where only medicinal use is legal) who live just over the border in New York (where medical and recreational marijuana use are legal) may think they have greater leeway in using marijuana because they live in a state where it has been fully legalized. Therefore, your drug screening policies should take conflicting state laws into account, and provide candidates and employees with clear guidelines for testing.
Marijuana laws are continuing to change.
As states such as Virginia and New York have shown, marijuana laws may start with the legalization of medicinal use and expand to include recreational use and the right to sell. As a result, your drug screening practices will also need to be flexible enough to evolve as laws change.
In some states, changing marijuana laws may also lead to eased restrictions for other drugs you currently include in your pre-employment drug screening program. For example, though Oregon legalized marijuana in 2015, the state recently decriminalized the personal use of all drugs, including heroin, cocaine, and methamphetamine.
Now is the time to revisit the overall objective of your drug screening policy.
There can be many reasons your organization conducts drug screening, and they could include any of the following:
- To reduce the incidence of accidents and injury
- To establish a drug-free workplace
- To comply with legal requirements for your industry, for example, healthcare and transportation
Whatever your goals are for drug screening, you’ll need to consider how changes to your screening policies and practices could help or hinder those goals. Given the frequent changes in marijuana legislation, now is a great time to determine your organization’s stance on marijuana and whether it still needs to be a part of your pre-employment drug screening program.
Work with a trusted screening partner.
A knowledgeable screening partner can help you recognize the impact of changing marijuana laws on your drug screening program, and work with you to consider your options.
For example, your screening provider can help you with the following actions;
- Conducting regular reviews of your drug screening program to identify any potential compliance risks and opportunities for process improvements
- Introducing paperless drug screening technology to increase automation in the screening process and help to improve the candidate experience
- Establishing distinct drug screening practices by job type, for example, positions working with heavy machinery may require drug screening, but administration positions may not
Modernize Your Pre-Employment Drug Screening Program
If it has been a while since you last reviewed your drug screening activities, chances are there are plentiful opportunities to make some enhancements. Evolving marijuana laws and the possibility of federal legislation make now a great time to take a closer look at your screening program. In light of recent and pending legislation, you’ll need to determine which substances to include and which job types may require more stringent screening than others.
As you review your drug screening program, you’ll also need to consider how changing background check laws impact your overall background screening activities. Read our Guide to Current “Ban the Box” Legislation to learn more about how today’s laws impact your employment screening and drug testing activities.