Legal Marijuana Raises Drug Screening Questions and Risks

June 9, 2021

(This blog is provided for perspective only and not to be taken as legal advice)

As I often remind service providers, though i-SIGMA certifications (NAID AAA/PRISM Privacy+) require drug screening prior to hiring, and either ongoing drug screening or training to recognize substance abuse, the certifications themselves do not prescribe how service providers respond to the results of those screens.

The point of the screening is so that service providers are aware, and can, as a result, make their own determination on what their own substance abuse policy mandates. Clearly there is a difference between a positive test at hiring and a positive test by a long-standing, contributing employee. Clearly there is a difference as to whether the employee was under the influence at work, or it just showed up on a screen. What the service provider does is up to their policy, and advice from their legal counsel (ideally an employment lawyer.)

Enter the fact that marijuana is now legal in a growing number of states.

Presently, in the states of Montana, Maine, Nevada, New York, and New Jersey, not hiring an individual on the basis of recreational marijuana use is considered discriminatory. The same thing goes for cities such as Atlanta, New York City, Philadelphia, Washington DC, Rochester, NY, and Richmond, VA. Then there are another twenty states that have enacted laws protecting employment rights of medical marijuana users.

So what?

One: You need to comply with the anti-discrimination laws. If your state or city is or becomes a place where marijuana use is legal, you could risk a discrimination suit if you’re not prepared.

Two: It is no secret that we are entering a tight employment market. I get a call a week from someone asking if others are having the same trouble as they are attracting and keeping good help. Legal use of marijuana is growing, and like it or not, there is an increasing chance that prospective hires using it recreationally will turn up at your door. I’m not telling anyone what to do, but you need a plan that is non-discriminatory and that does not deny you a potentially good employee at a time when finding them is tough.

Note: Most states do shield such employers from marijuana-use discrimination where those employers are required to follow federal drug-testing mandates.

Written by Bob Johnson | 9 June 2021