Employers Drop Screenings for Cannabis as Legalization Spreads

With cannabis legalization measures continuing to take hold across the United States, more and more workers in today’s increasingly tight labor market are using cannabis, either medicinally or for recreational purposes. The trend is causing a shift in employee hiring and retention standards, with some employers deciding to end drug screenings for marijuana. Kathryn Russo, a principal at Jackson Lewis, a law firm representing employers, said that many companies are re-evaluating their drug-testing policies as attitudes and norms surrounding cannabis evolve. And while few are ending drug testing completely, some are opting to end screenings for THC.

“I started seeing that trend probably sometime last year, and it’s just increasing this year,” Russo told the Washington Post, referring to pre-employment screenings for cannabis. “It’s frustrating for them when they find someone they really like that person tests positive for marijuana and they have to start over again.”

Brenda Buyce, a human resources manager at Park Village Pines, an assisted-living facility in Kalamazoo, Michigan, said that drug testing for cannabis led the company to eliminate many good candidates, particularly among young people. State licensing regulations prevent the facility from hiring individuals who test positive for marijuana, despite the legalization of adult-use cannabis in Michigan. So last year, Park Village Pines stopped testing job candidates for THC. Buyce said that testing “for a legalized substance is not in our best interest.”

“It’s legal,” she said. “They can do it on their own time. But it stays in their system and pegs them as a drug user.”

Tight Labor Market Spurs Changes In Cannabis Testing

Ending drug testing for cannabis can ease hiring pressure on companies eager for new workers. With the unemployment rate at or near historic lows in several states, many employers find themselves competing even more fiercely for quality job candidates. And increasingly, that pool of top-tier workers in this tightening labor market includes women and men who use cannabis, either recreationally or for medical purposes.

“More people are using marijuana because it comes in so many forms and you could miss the opportunity to get good employees,” Clifton W. Albright, a founding partner and president of Albright, Yee & Schmit, APC, told Bloomberg Law.

“If they’re not using it on the job, why do you care? That’s the attitude employers are taking,” he added.

Positivity Rates Rising

Even as fewer employers are testing their workers for cannabis use, those that do screen workers are seeing the rate of positive tests climb as cannabis legalization continues to spread across the country. In an annual analysis of its drug testing released in May, medical lab company Quest Diagnostics reported that the U.S. positivity rate for cannabis had climbed to a record high. Of the more than 6 million urine tests the company analyzed for marijuana use in 2022 in the general employee category (those not in safety-sensitive positions such as pilots and truck drivers, who undergo routine testing), 4.3% were positive, up from 3.9% the year before. The figure is the highest positivity rate recorded by Quest in the 34 years it has been analyzing data from its drug-testing operations. Among general workers tested for cannabis after an accident in the workplace, 7.3% tested positive in 2022, up from 6.7% in 2021 and the highest rate in 25 years.

“This historic rise seems to correspond with sharp increases in positivity for marijuana in both pre-employment and post-accident drug tests, suggesting that changing societal attitudes about marijuana may be impacting workplace behaviors,” Keith Ward, general manager and vice president for employer solutions at Quest Diagnostics, said in a statement to CBS News.

The positivity rate for cannabis screenings is even higher in states that have legalized marijuana. Among the U.S. general workforce, 5.7% tested positive for cannabis in states that have legalized recreational marijuana, in 2022, up from 5.1% in 2021, an increase of 11.8%. In states that have legalized the medicinal use of cannabis, the positivity rate jumped by 8.3%, up from 3.6% in 2021 to 3.9% last year.  

“In the general U.S. workforce, states that have legalized recreational and medical marijuana use exhibit higher positivity rates than the national average. States that have not legalized marijuana appear to have positivity rates below the national averages,” said Suhash Harwani, Ph. D, the senior director of science for employer solutions at Quest Diagnostics.

Increasingly, employers are finding they must revise their policy governing marijuana testing of workers to comply with state law. While only three states—Kansas, Nebraska and Idaho—have failed to legalize at least some form of cannabis, 38 states have passed laws legalizing medical marijuana and 23 have legalized cannabis for adults. As these reforms take hold, some states are going even further by-passing measures to protect the employment rights of cannabis users. Laws in 20 states prevent employers from discriminating against workers based on their use of medical marijuana, according to a report from the California chapter of the National Organization for the Reform of Marijuana Laws (CalNORML), and two more provide similar protection for public employees. Additionally, eight states have adopted measures to protect the employment rights of recreational cannabis users.