The changing legal landscape regarding marijuana may impact the legality of pre-employment drug screening of candidates. Societal norms may also pressure employers to exclude marijuana from drug testing protocols. No matter what course of action is selected, it should be a conscious choice driven by an understanding of the issues.By 2017, the total of states that have some marijuana provision could stand at 25 plus DC, representing fifty-five percent of the US population.
Currently, state legalization does not mean that employers are barred from including marijuana in their pre-employment testing protocol. At this point, court cases have supported the employer’s right to test. The first case testing the issue resulted in a 2008 California Supreme Court finding that the state’s Compassionate Use law applied only to protection from prosecution.
Employers in California are free to consider illegal drug use in employment decisions, including hiring. Marijuana is still an illegal drug under federal law. Other jurisdictions have generally produced similar findings.
This area of employment law will continue to evolve through litigation. The final result may be different rules in different jurisdictions. Additionally, rules for pre-employment and current workers may be different. In general, the employer will have the most flexibility with pre-employment protocols.
For an employer with a multi-jurisdiction workforce, compliance may pose a challenge through this evolutionary period. Our specialization in pre-employment screening, including drug testing, can help in managing this issue. Please contact us to discuss how we can help.