By Elizabeth McLean
To Screen or Not to Screen? Cannabis use was once frowned on, but recent legislation and cultural shifts have almost completely eliminated the taboo. Should businesses still test their employees for pot? I’m not just blowing smoke — pot is mainstream now. Although federal law still prohibits its sale and use, 18 states and Washington, D.C. have legalized recreational marijuana for adults over 21, with 37 states allowing it for medical purposes. Change may be on the way at the federal level as well. In December 2020, the House passed the “The Marijuana Opportunity Reinvestment and Expungement Act,” or, the MORE Act, a piece of U.S. federal legislation that would deschedule cannabis from the Controlled Substances Act and enact various criminal and social justice reforms, including the expungement of prior convictions. It died after House approval. In late May 2021, Rep. Jerrold Nadler D-N.Y. reintroduced the bill for the 2021 U.S. House of Representatives to consider, adding the year to the original MORE Act, which marked the first time a chamber of Congress approved legislation to end federal marijuana prohibition. If passed in both Houses this year, the act will remove cannabis from the Controlled Substances Act, facilitate the
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expungement of past convictions, and tax cannabis products at five percent to fund criminal and social reform projects. It would also prohibit the denial of any federal public benefits, like housing, on the basis of cannabis use, and states that use or possession of marijuana would have no adverse impact under immigration laws. These potential changes in the law reflect changes in the culture, which in turn affect how businesses deal with pot use among potential employees.
Is Screening Still Ok? As the laws change and pot culture becomes mainstream culture, many employers are wondering whether it is still appropriate — or even legal — to screen employees for marijuana use. There are multiple considerations to keep in mind when deciding whether to screen. On the one hand, in some industries it makes a lot of sense to screen for pot. Marijuana may not be as addictive or dangerous as some other substances, but it is still a mind-altering drug. Certain jobs require a level of mental alertness and physical coordination that might be compromised by regular cannabis use. In the manufacturing industry, for example, it can be a severe health and safety risk to have workers on the job while high, especially if they are driving vehicles and operating machinery.
On the other hand, it has been widely reported that it’s not easy to find good workers in post pandemic times. Many companies are struggling to source and retain capable employees. Waiving marijuana checks might solve some of these recruiting issues, attracting a wider pool of job seekers. As long as it doesn’t affect their job performance, a worker’s use of marijuana at home might not be any of their employer’s business. This, at least, is the reasoning behind a recent decision by Amazon, which announced on May 30, 2021 that it would stop testing job applicants for pot. In addition to the factors listed above, employers need to be aware that some states have banned pot screening altogether. As businesses widen their geographical pool in search of employees, they need to make sure they are remaining compliant with a complex web of screening laws. Here are a few simple guidelines that can help you decide whether or not you should screen for marijuana use. 1. Distinguish the jobs that require screening from those that don’t. You may not have to test everyone, even if you’re in an industry that requires testing. There is probably less reason to drug test someone working a desk job than there is to test an employee
