Employment Drug Testing and Marijuana Legalization

Jolene Pilgrim
11 Sep 2019

Drug testing.  It’s a trope used as an anxiety-inducing plot device in countless stoner comedies.  Perhaps it has even made its way into your real-world job search with your current or former employer.  For years medical drug screening has been a tool utilized by well-meaning but cautious companies who want to ensure their newest hire is focused on their work and not under the influence or partaking in illegal activities on personal time.  It’s also big business with some estimates predicting the drug testing market will have a value of $13.89 billion by 2027.

While that’s all well and good, the increasing number of states that have legalized medical and even recreational marijuana use places a snag in the previously streamlined system.  Can, or should, companies expect their employees to not engage in perfectly legal behaviors outside of office hours? As it turns out, many states are wrestling with exactly that question.

The Push to Legalization

Beginning in the 1990’s states began taking a serious look at the potential benefits to marijuana use.  By the time the millennium rolled around, five states had legalized medical marijuana use via a doctor’s prescription.  In 2012 Colorado and Washington were the first states to legalize recreational marijuana use. Today 11 states have laws on the books legalizing recreations weed use.

Marijuana and Drug Testing

Years ago, employers realized the utility in drug testing potential new hires.  The logic went that anyone who engaged in illicit drug use during personal time probably wasn’t up to company standards.  You could eliminate problem employees and ensure that anyone you brought on board was in line with your corporate culture and focused on their daily job duties.  Marijuana was typical one of numerous substances tested for on broad screening panels performed by third-party drug testing labs.

With the advent of legalized recreational marijuana use, however, many employees are rethinking screening for its use, and for drug use altogether.  As of 2017, one in seven U.S. adults admitted to occasional marijuana use.  With the increasing number of states taking action on the topic, it only stands to reason that the number will continue to increase.  Marijuana use continues to be studied for its benefits on a range of health conditions from insomnia to pain management and is consistently touted as a useful and enjoyable tool for many adults.  While the topic is hotly debated, many advocates tout marijuana as a safer drug of choice than alcohol for recreational use, a legal but regulated substance.

With the increase in use and legal status, it’s not too hard to see the quandary employers are faced with when it comes to drug testing for marijuana.  Companies in states that allow recreational marijuana are narrowing the potential applicant pool by eliminating otherwise talented candidates from consideration.  With the increase in acceptance and mainstream use of weed employers also run the risk of alienating younger talent who tend to be more focused on company culture and inclusiveness in the workplace.  Then there are the legal considerations. New York state recently passed a law prohibiting pre-employment screening for marijuana in all but a handful of professions such as construction workers, nurses, and police officers. While drug screening for marijuana use is still allowed in many states, it’s not hard to imagine similar legislation being enacted as the push towards federal legalization continues. 

What Can (and Should) Employers Do

While the verdict is still out on marijuana’s ultimate status, there are common-sense steps employers can take now to provide guidance and clarity with their new and existing workforce.  For starters, companies are well within their rights to prohibit the use of drugs or alcohol while employees are on duty. Reasonable policies that clearly spell out the ability of employers to terminate anyone who shows up to work intoxicated or high are an accepted and safe course.  Likewise, it’s also a reasonable expectation for careers in industries that deal with public health and safety that employees refrain from drug use that may impact their ability to operate at a high level of attention. 

What companies shouldn’t do, however, is throw the baby out with the bathwater by enacting zero-tolerance policies that alienate and limit their access to quality talent.  Finally, it may be worth your time and money to consult with an employment attorney to learn about the laws of your particular city or state concerning drug screening and use.  Taking this holistic approach allows companies to adapt to changing the societal acceptance of marijuana while still protecting their business.


Jolene Pilgrim