Should Employers Still Test for Marijuana?

By Paul Gaita 08/02/19

Critics are pushing back against the testing because of the amount of time THC can stay in the system after being ingested.

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employer holding a drug-testing cup
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A recent feature on CNBC posits a question that has grown in relevance over the past few years, and is likely to continue to grow in the months to come: as more states and districts legalize marijuana for medical and recreational use, should businesses continue to use drug testing for THC to determine whether a prospective employee should be hired?

CNBC noted the disparity between employees – both current and future – that drink alcohol after work or the day before a job interview and those who use cannabis for medical or recreational purposes. 

The former, if tested, shows no sign of impairment when tested the following day, but the cannabis user will present positive signs for THC up to 30 days. For some employers, the positive test would bar them from hiring that individual or keeping them on the payroll. But as rates of marijuana positivity in test results on the rise, should testing remain a deciding factor in hiring or employment?

The CNBC feature quotes data culled by Quest Diagnostics, which found that positives for drugs in all areas of the workforce, including federally mandated, "safety-sensitive" jobs reached a 14-year high of 4.4%, which is 25% higher than the 30-year low of 3.5% noted between 2010 and 2012.

When factored into other recent statistics – the increase in the number of states that have legalized cannabis (currently, 11 states and Washington DC) and the lowest US unemployment rate in 49 years (3.7% in July 2019) –  CNBC  queried whether it was not only fair but also financially responsible to weed out potential employees due to cannabis use.

Marijuana Advocates Chime In

Marijuana advocates certainly don't agree. "An employer can basically refuse to hire you or discipline you for a positive THC in your blood, even if you're a lawful medical marijuana patient using lawfully under state law," said Tama Todd, vice-chair of the California Cannabis Advisory Committee, and a lecturer on marijuana law and policy at Berkeley Law.  

"The test of whether you have THC in your system is unrelated to whether you're impaired at the time. It shows positive even if you used marijuana a week, two weeks ago. It's basically like a morality test," said Todd.

CNBC also noted that Nevada, Maine and New York City have all passed laws that prevent employers from refusing to hire a person due to a positive test for THC, and a number of companies have either removed marijuana from their drug test panels or are in the process of changing their policies in regard to drug testing. "The labor pool is so tight that they feel like drug testing is going to prevent them from being able to staff adequately, so they don't drug test at all," said Judi Braswell, vice president of business development at Behavioral Health Systems.

As Todd told CNBC, more companies will follow suit. "Once the idea of legalization and people lawfully using marijuana becomes more normalized in people's minds, it'll lead to, 'Oh, it's sort of like alcohol. And why would we discipline or not hire a qualified candidate because they engaged in lawful activity off duty?'"

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Paul Gaita lives in Los Angeles. He has contributed to the Los Angeles Times, Variety, LA Weekly, Amazon.com and The Los Angeles Beat, among many other publications and websites. 

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