To Screen or Not to Screen?

By Elizabeth McLean

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 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

lifting heavy objects on a factory floor.

If you’re not required to test, and have no obvious reason to, then don’t do it.

The cons probably outweigh the pros.

2. If your company is located in a place that doesn’t allow cannabis testing,

follow the law and don’t test. Also keep in mind that state and local laws will generally have exceptions that allow testing if it is required by federal law, or if the open position requires interaction with vulnerable groups such as the elderly or children.

For instance, New York City has a ban on pre-employment marijuana testing, but it will allow testing for certain jobs, such as police officers, positions supervising medical patients, positions requiring a commercial driver’s license and positions supervising or caring for children.

3. Get support from an experienced background screening partner.

Clearly, marijuana testing can be a legal and ethical minefield for employers.

For this reason, companies should team up with a background screening partner that is plugged into the changing laws around cannabis use.

HR executives need to trust that their background check partner is up-to-date, and aware of the shifting legal landscape from state to state, or within a regulated industry. They also need a simple way to hire across state lines and understand the laws quickly so that they don’t get caught up in situations where they’ve screened for marijuana use where they shouldn’t have. Legal teams love the peace of mind that a trusted partner is behind-the-scenes, handling the finer details of all the change.

GoodHire, the country’s leading background check software platform for businesses, introduced a streamlined 4-panel drug screening option to suit the needs of employers who have decided to stop testing for marijuana.

Companies that need to comply with industry employment drug screening laws within their industry or to comply with company policy can still select the 5-panel, or the most extensive 10-panel drug screenings for the hiring process.

GoodHire’s employer drug screening offerings are designed to meet a company’s policy and drug-free workplace obligations, while helping them comply with applicable federal, state and local regulations. The 5- and 10-panel option screen for drugs include those listed below; the 4-panel screening option includes the first four: 1. Amphetamines (Adderall) 2. Phencyclidine (Angel Dust) 3. Cocaine 4. Opiates (Heroin, Fentanyl) 5. Marijuana 6. Barbiturates 7. Benzodiazepines (Xanax, Valium) 8. Methadone 9. Methaqualone (Quaaludes) 10.Propox (Darvon)

There are many factors that determine whether a company needs to conduct comprehensive drug screenings, or whether a lighter touch is appropriate. To make this complex decision, businesses need trusted background check partners who can help them remain up-to-date on the changing legal and regulatory landscape. n

Elizabeth McLean is an FCRA-compliance attorney and general counsel at GoodHire, a leading employment screening provider. An expert in the background screening legal landscape, she follows new legislation and court decisions to advise the company on processes that follow compliance best practices.