As the United States begins to embrace the legalization of marijuana or tetrahydrocannabinol (THC) for medical and recreational use, the individual state and local laws that now allow it is coming into conflict with laws related to drug testing by employers.
Marijuana possession has been illegal under federal law since 1970. Then, during the anti-drug push of the 1980s, pre-employment drug testing for marijuana and its psychoactive chemical ingredient THC became standard policy by law-abiding employers that wanted to retain eligibility for grants and federal assistance under the Drug-Free Workplace Act of 1987. But, it’s 2020 now and employers don’t need to maintain a zero-tolerance drug policy or test for marijuana if it’s no longer illegal, right?
Right, at least according to some lawmakers. Though marijuana remains illegal under federal law, it’s been decriminalized and made legal for medical use in New York. So, in May, New York City declared it unlawful for “an employer, labor organization, employment agency, or agent thereof to require a prospective employee to submit to testing for the presence of any tetrahydrocannabinol or marijuana in such prospective employee’s system as a condition of employment.”
And, earlier this year, officials in Rochester, N.Y., and Richmond, Va., voted to exclude their city job candidates and employees from marijuana testing, as well.
The complications start to arise with “safety-sensitive” roles in the workplace. Employees who are under the influence of THC can have issues like slowed reaction times, impaired cognitive abilities, and behavior problems. It’s for that very reason that federal law adopted the zero-tolerance policy that led to pre-employment testing requirements in the ‘80s. And it’s why both NYC and Rochester officials made an exception to allow pre-employment and employee testing of “safety-sensitive” employees.
At what point does the 81% of employers surveyed by the National Safety Council in 2019 who are “concerned” about the effects of marijuana or THC on their workforces–regardless of safety sensitivity–have to re-evaluate workplace drug policy? The simplest answer will come if federal law legalizes marijuana in 2021. But until that happens, changes to drug testing for it will continue to happen slowly and locally.
Talk to ClearStar if you need help keeping up with changing pre-employment drug screening needs in your city, state, or industry.