Historically, every state has legally enforced some form of pre-employment drug testing. These policies have helped businesses enhance job safety, practice risk aversion, gain legal advantage, and boost productivity.
However, as 11 states have legalized recreational marijuana use and decriminalized possession, authorities propose restrictions and bans on applicant drug testing. These new restrictions necessitate that businesses seek new ways of improving productivity, safety, and morale despite the change.
Debates rage across the country. Supporters of legalizing, decriminalizing, and protecting marijuana are well-organized and effective. Two primary arguments support their efforts: (1) the government and employers have intruded too far into the private lives of American citizens through drug testing programs; and (2) pre-employment drug tests for marijuana perpetuate a decades-long stigma that has disproportionately impacted people of color. To pre-employment testing prohibition proponents, concerns over civil rights, privacy, and discrimination outweigh the businesses’ interest in testing their employees.
Employers face serious concerns. Do they have the right to test applicants and employees for marijuana in states legalizing the drug? Even if legally authorized, what actions can employers take to protect their business and employees? For example, can they terminate employment of a medical marijuana user for a positive drug test result?
To answer these questions, employers turn to workplace drug and alcohol testing laws in their state. Most of these laws fall under voluntary and industry-specific categories.
Voluntary laws see that applicants are tested as part of a discount program such as when an employer seeks lower workers’ compensation insurance premiums. For example, two states, Florida and Georgia, require testing under voluntary drug-free workplace program conditions to qualify for credits on their premiums.
Industry-specific laws often require applicant testing programs for employers operating in certain safety-sensitive industries and contracting for the state and/or federal government. For public works contractors in Illinois, for example, testing is mandatory. Other forms of public service where safety is a concern for the community, city, or state also make similar provisions.
In the vast majority of jurisdictions, employers still hold the right to test applicants, though under certain restrictions. Many marijuana legalization statutes have workplace language that covers the issue of discrimination as well as being under the influence at the workplace.
When an employee tests positive for marijuana, the applicable state or federal law controls which actions can be legally taken by the employer. Even in some marijuana-friendly states, employers can refuse to hire an applicant or terminate employment for receiving a positive result.
Research demonstrates that drug use leads to lost productivity such as absenteeism and inconsistent work quality that can be regained through strong testing practices. In addition, testing can deter illegal activities at work such as the on-the-job use and sale of drugs. Employers argue that testing programs can thus improve work quality, employee concentration, and carefulness.
What does a pre-employment drug test say about an applicant? A negative test merely indicates that the employee does not have any drugs or drug metabolites detectable in her system at the time of the test, not that she hasn’t used illicit substances in the past or won’t refrain from use in the future. Similarly, a positive pre-employment test indicates merely that the employee has drugs or drug metabolites detectable in her system at the time of the test, not that the use was necessarily unlawful at the time or that she is any more or less likely to refrain from its use in the future. Despite these perilously vast deductive leaps, pre-employment tests do appear to be at least a somewhat effective method of screening applicants who are unsafe or unfit to work in a safety-sensitive position. In fact, many employers and regulations require that an applicant who has received a positive result seek assistance in a treatment program before applying for safety-sensitive work in the field again. Those employees with a substance use or abuse problem are identified and have an avenue to gain treatment, whereas those same applicants that are not tested may go on unidentified and thus untreated in the workplace.
As proponents of legalization continue to fight for acceptance and protection, employers must remain vigilant in efforts to protect their businesses with testing best-practices. Keeping up to date with filings and changes to statutes is the best way for employers to protect their business.
 See, e.g., Andrew Easler “Striking a Balance: New York City Updates Pre-employment THC Prohibition” Easler Education. ( https://worktraining.com/striking-a-balance-new-york-city-updates-pre-employment-thc-testing-prohibition/ ).  See, generally, Press Release, The Leadership Conference on Civil and Human Rights, 125 Groups Urge Congressional Action on the MORE Act (Aug. 14, 2020) (on file with author) (expressing that “mass criminalization, racially biased policing, and over-enforcement of drug law violations have devastated the social and economic fabrics of communities of color, while also tearing apart the lives of millions of individuals and families. The continued enforcement of marijuana prohibition laws results in over 600,000 arrests annually, disproportionately impacting people of color. . . This also means that these individuals will be marked with a drug conviction record that will affect their ability to work, find housing, and otherwise provide for their families”  Compare, C.R.S. 44-10-104(5)(a) (providing that, though the state law permits recreational and medical marijuana, “[n]othing in this article 10 is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or cultivating of regulated marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees”); with 16 Del. C. § 4903A (providing for certain protections for medical marijuana cardholders likely extending to employment).  See,  See, Fla. Stat. § 440.102 (2020).  See, 820 Ill. Comp. Stat. Ann. 265/1 (LexisNexis, Lexis Advance through P.A. 101-650 of the 2020 Session of the 101st Legislature).  See, C.R.S. 44-10-104(5)(a) (providing that, though the state law permits recreational and medical marijuana, “[n]othing in this article 10 is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or cultivating of regulated marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees”).  See, Amitava Dasgupta, A Health Educator’s Guide to Understanding Drugs of Abuse Testing 59, 49, 50-51 (2010).  NOTE: Some readers may be quick to point out that despite legality under state law, marijuana, for example, remains a Schedule I Controlled Substance under federal law in the United States. I would first like to point those readers to an employee’s recent vacation to Amsterdam where the employee’s use was in fact legal. I would next like to point to a hypothetical scenario in which a petite employee ingested just one too many cannabidiol/hemp supplements, deemed legal under the 2018 Farm Bill for its less than 0.3% concentration of THC. Such a scenario would technically be legal (and require copious amounts of supplement ingestion), yet if the THC concentration exceeded the cut-off level on her drug test, she would receive a positive result.  See, https://worktraining.com/in-house-drug-testing