“But It’s Legal Now!”—Inside the World of Employees Navigating the Terrain of Legal Marijuana and Drug Testing for Jobs

As more and more states legalize recreational marijuana, many job applicants are left scratching their heads as to what their rights are when it comes to being drug tested by employers when beginning a new job, or retaining a job that they have received. With marijuana currently legal in some form in 33 states and the District of Columbia, many already-working employees, as well as job applicants, have been led to believe that employers no longer have the ability to require drug tests for marijuana. This is wrong, as numerous job applicants have recently learned, after having job offers rescinded after testing positive for marijuana use.

          The New York Times, in a recent article entitled, “When the Law Says Marijuana is OK, but the Boss Disagrees” delved into this trending and potentially confusing space of legal marijuana use and employees’ rights. A chemical engineer named Kimberley Cue, in the New York Times article, detailed what happened to her when she tested positive for marijuana, after being offered a job at a medical device manufacturer. Ms. Cue stated that when, after being offered the position, her potential employer discovered that Ms. Cue smoked marijuana, she lost the job. Ms. Cue, despite her already having business cards with her name on it, and having her work e-mail already set up and functioning, was informed by human resources that she was no longer being offered the job after her marijuana test results came back as positive. Ms. Cue stated, when discussing her frustration with losing the job, “I should be able to be upfront and honest with my employer.”

          Numerous city and state legislatures across the country have weighed in on the topic. The State of Nevada passed a bill banning employers from denying applicants jobs on the basis of a positive marijuana test. Additionally, in New York City, many employers have been banned from forcing job applicants to take drug tests for marijuana use.

           What has also complicated human resource policies on the issue is the red-hot economy, which has left many employers strapped for workers, and not in a position to force harsh anti-marijuana policies upon potential hires. This has been especially true in the State of California, which has a very low unemployment rate of 4.2%. California employers, in response to this, have taken a position of either not requiring drug tests for marijuana use, or ignoring the results of said tests when they come back positive for marijuana use. Marc Cannon, a spokesman for AutoNation, the largest U.S. car retailer, when asked about the topic, stated, “You watch what’s going on in society, and you say, ‘We’ve got to adjust.’” AutoNation employees over 26,000 people nationwide, and has 55 stores in California. And three years ago, AutoNation stopped screening for cannabis altogether. “A lot of great candidates were failing the test,” said Mr. Cannon. “There are people who drink and are great workers, but they don’t do it on the job. Marijuana is just like alcohol.”

        As the laws and mindsets regarding marijuana use shift, job applicants are advised to fully educate themselves on what the laws are regarding marijuana drug testing in their specific city or state. Even when there are laws prohibiting marijuana tests for job applicants, there can still exist numerous exceptions to the law, depending on the exact job position that an applicant is in the running for. Many companies, including Caesars Entertainment, one of Nevada’s largest employers, continue to require marijuana testing for positions that have a safety risk involved. Additionally, the New York City law banning marijuana tests for job applicants has numerous exceptions which do allow for employers to require marijuana tests, based on the position being applied for. In New York City, applicants for the following positions can still be tested: construction workers, police officers, commercial drivers, teachers, teachers' aides or day care center employees, any job that requires the supervision or care of patients in a medical, nursing home or group care facility, and any job that has the potential to significantly impact the health or safety of employees or members of the public. Applicants may also be tested for marijuana if such testing is required by the U.S. Department of Transportation, federal contracts or grants, federal or state statutes, or collective bargaining agreements. Additionally, it is important for employees to understand that even when a workplace does not require marijuana testing before coming aboard for a new job position, most workplaces still completely ban the use of marijuana while at the workplace, with a zero-tolerance policy for working while under the influence.

       Employers are advised to hire a human resources consultant to assist with working through what their respective policy will be regarding marijuana testing, and to draft a well-written human resources policy, clearly expressing their position regarding the issue. Employees that engage in marijuana use are urged to do thorough Google searches before applying to a position in order to understand that company’s policy on the issue. Websites such as Glassdoor, The Vault, and Indeed, contain numerous employee reviews, speaking about respective company cultures and policies. If an employee is feeling especially brave, they should also perhaps consider directly asking their human resources hiring contact what the company’s policy is on marijuana use and testing.

The Triangle Takeaway: Rapidly-changing laws and society opinions regarding marijuana use require employers to be nimble with developing consistent policies and procedures for addressing marijuana use. Whether an employer requires potential employees or current employees to submit to marijuana testing, the key is transparency and consistency—an inconsistent approach to drug testing and enforcement of anti-substance use rules in the workplace can lead to allegations of discrimination, and potential lawsuits. Triangle provides policy-writing for workplaces, covering a large range of topics, including marijuana testing and marijuana use. Additionally, employers must conduct human resources training to fully educate current employees of the employers’ rules about marijuana use. Triangle provides lively, engaging employee training on a wide range of workplace issues and policies.