A tight labor market, evolving legal landscape, and changing public views about marijuana have employers asking a once-unthinkable question: Is it time to drop pot from the list of drugs targeted by workplace testing programs?

Some employers have quit testing for marijuana for a simple reason: A zero-tolerance policy requires firing otherwise good employees for failing drug tests, yet makes it hard to find replacements because so many applicants are testing positive, too.

“At some point you might have to ask, do we really want to test for this?” said attorney Timothy Newton of Constangy, Brooks, Smith & Prophete at the recent HR Specialist Summit in Las Vegas.

He noted that employers deciding to forego marijuana testing may soon enjoy a competitive recruiting and hiring advantage.

As demand for skilled employees grow, plenty of applicants who use cannabis either recreationally or for medical reasons are deciding they don’t want to work for an employer that would disqualify them for failing a marijuana screen.

Use of marijuana for medical purposes is legal in 28 states. Recreational use is legal in Alaska, California, Colorado, the District of Columbia, Maine, Massachusetts, Nevada, Oregon, and Washington. The number of states legalizing medical use, recreational use, or both is expected to grow.

Under federal law, marijuana use or possession is still illegal. For some safety-sensitive positions, federal law requires firing employees who test positive for marijuana. Employers that hold contracts with the U.S. government must maintain drug-free workplaces.

Even in states where marijuana use is legal, employers are free to drug-test employees and forbid them from using pot at work or being high on the job. “It’s just like alcohol in that regard,” Newton said.

However, Newton said, it may be time to review your anti-marijuana policy. “Certainly spell out what behavior is banned on company premises and company time,” he advised. “But you may want to consider positive test results on a case-by-case basis, rather than on a zero-tolerance, firing basis.”

Source: TheHRSpecialist | November 2017