Change in the Wind: Time for Employers to Review Their 2022 Workplace Drug Testing Polices – JD Supra

Q: I read that some major companies no longer drug test applicants for marijuana. What should our company consider as we conduct a review of our workplace drug testing policy for 2022?

A: It is true that a growing number of companies appear to be eliminating workplace drug testing. There are two major reasons: expanding marijuana legalization and the pandemic-era labor shortage.

Expanding Marijuana Legalization

Currently, 18 states and D.C. have fully legalized marijuana for recreational purposes, including Connecticut, New Mexico, New Jersey, New York, and Virginia, all of which legalized the use of marijuana for recreational purposes in the last year. In addition, 36 states have legalized marijuana use for medicinal purposes.

Some of these states prohibit employers from taking adverse employment actions against employees for legal off-duty marijuana use, while other states are considering creating or amending marijuana legalization laws to either include employment protections or expand the coverage of existing laws.

In the wake of these laws, many employers are considering removing marijuana from the panel of drugs tested for in their employment policies, at least in the absence of reasonable suspicion that the employee is using or impaired by marijuana on the job. It is important to note in this regard that marijuana can be detected in an individual’s system up to 30 days after use, so a positive marijuana test does not necessarily mean that the individual currently is impaired.

Pandemic-Era Labor Shortage

According to the U.S. Department of Labor, more than 4.5 million people voluntarily left their jobs in November 2021 — up from 4.2 million in October 2021 and the highest in the 20 years the government has kept track. Sometimes referred to as the “Great Resignation,” various job sectors have experienced high turnover rates during the pandemic with the hardest-hit industries being leisure and hospitality — including those who work in the arts and entertainment, as well as in restaurants and hotels — trade, transportation and utilities, professional services, and retail. Many workers are taking advantage of the intense competition for employees by using it as leverage to seek better pay, hours, and nonfinancial benefits like work-life balance.

While generally viewed as a boon to employees, the Great Resignation has left many employers in the difficult position of not having enough labor or talent to help run their businesses, which has been crippling for some. Employers are taking a hard look at barriers to the recruitment process as a result of the tight job market, and they are loathe to reject an applicant because of a positive marijuana drug test.

Major Companies Adapting Hiring Protocols

Some of the nation’s biggest companies have observed these recent trends and consequently started to adapt their hiring protocols. For example, some large employers are actively lobbying Congress in favor of legalizing marijuana at the federal level, as well as announcing that they will no longer screen applicants for marijuana in their pre-employment drug screening program for jobs not regulated by the U.S. Department of Transportation. Also, some companies are clearly advertising that they do not test for marijuana use in a move that could expand their applicant pool and increase applications.

Time to Review Drug Testing Policy

With global talent shortages reaching a 15-year high, many employers in the United States and around the world believe that something must change — and for several companies that means eliminating marijuana drug tests.

Naturally, not all employers are willing to make such a change and have valid concerns related to job performance, potential impairment, safety, and liability. Nonetheless, it is important for employers to consider the combined impacts of the expanding legalization of marijuana use and pandemic-era labor shortage on their businesses as they rethink their drug-use policies.

Given the ever-changing nature of marijuana legislation, we recommend staying current on the marijuana laws in your state, as well as in the other states you may have applicants or employees. 

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