Questions arise over pre-employment drug screens and legal marijuana
The 2017 election cycle saw four states pass ballot initiatives legalizing nonmedical marijuana. As a result, 21 percent of Americans will soon live somewhere where it's permitted to use the drug without a doctor's notice.
However, marijuana is still an illegal substance on a federal level, meaning that employers - even in states where pot use is allowed - have the right to drug test a job candidate.
In December, California, Massachusetts, Maine and Nevada joined Washington, Colorado, Oregon and Alaska in legalizing recreational marijuana, while an additional 20 states along with the District of Columbia allow usage of medical marijuana.
Employers in these states can still follow the federal law prohibiting marijuana use, even if it conflicts with the state ruling. For example, while California allows recreational use, the new law also maintains that organizations are able to keep in-house policies that ensure a drug- and alcohol-free workplace. Employment lawyers in the Golden State say most companies they're in contact with plan to keep drug-screening procedures which forbid the use of cannabis.
Not every state is following California's lead: Colorado, which legalized the casual use of marijuana in 2012, is gradually removing the substance from pre-employment drug testing panels.
According to a study from the Mountain State Employer Council, only 62 percent of 609 surveyed companies are engaged in pre-employment marijuana screening, down from 77 percent in 2014. The council speculates that low unemployment has lent to the testing slowdown, and would resume in concert with a rise in the state jobless rate.
Confusion over state and federal guidelines may lead companies to question their drug-screening policies. Safety-sensitive industries such as transportation and aviation are required by federal law to test applicants for pot and other drugs.
Employers outside of those industries should carefully track changes in state drug-testing laws, and refrain from taking adverse action against a candidate without first consulting legal counsel. Ten states including Florida have "compassionate care" statutes that allow the substance to be used for medical reasons. Under the act, employers cannot disqualify someone from work because that person tested positive for marijuana.
As laws over marijuana legalization continue to evolve, all companies should have a comprehensive, legally acceptable drug policy that clearly addresses decriminalized marijuana use.
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