Marijuana legislation and employer lawsuits

Legalization may already be the law in your state for recreational and medical marijuana or it will be soon. A total of thirty-three state a have a form of legalized use. Cities and states are banning marijuana testing for job applicants and others have limited rejecting job applicants when they fail a test. Change is coming both on a city and state level and employers must be diligent to avoid running afoul of statutes and potential lawsuits.

Quest Diagnostics reports that positive test results for marijuana has increased 35% where marijuana is illegal and 71% in states where marijuana is legal since 2010. How should employers factor in this change into your background check and drug screening processes?

The active ingredient in cannabis today, THC, is up to ten times more potent than in the 1970’s and can be detected in a person’s system for 30 days or more. By comparison, alcohol will be out of your system in a day.

If the threat of your employer violating city and state marijuana testing statutes isn’t enough, there is a real possibility of a lawsuit resulting from a decision made from a positive marijuana test result. Denying employment to a candidate using medical marijuana with a prescription has led to numerous anti-disability discrimination cases. Denying employment due to a positive drug screen in a state where marijuana is legal could also result in litigation.

Employers are reporting in recent surveys that they have a difficult time recruiting and job applications have fallen when drug testing is implemented. Recruiters find that a substantial number of qualified candidates fail to take the next step in the application process once they are informed that they are required to take a drug test. The unintended consequence of conducting screening for marijuana to promote a drug-free work environment is actually affecting the employer’s ability to recruit to the point where many employers have dropped mandatory drug testing.

There is legal marijuana that is grown by regulated growers and distributors. And then there is the marijuana sold on the street that is often spiked with one of more combinations of dangerous drugs. Some of the more common additives are- PCP, Heroin, LSD, Ecstasy, Methamphetamines, Ketamine and Cocaine.

Concerned about the potential for litigation relating to pre-employment  drug testing for marijuana? Employers can easily avoid the pitfalls relating to this specific test. Drug testing is commonly referred to as five, 10 or 12 panel tests. The tests within these panels are not a specific standard, meaning that an employer does not have to accept a marijuana test as part of their screen. Laboratory testing facilities will create custom panels designed by the employer that exclude testing for marijuana.

One easy solution for employers that wish to screen for dangerous drugs but are concerned about the legal consequences and other issues is to drop the marijuana test altogether. Employers can create their own “panel” that can bypass the marijuana test but include the drugs that are often added to marijuana as well as other dangerous substances.

This article is not legal advice. Always seek competent legal advice from an attorney specializing in employment law.