Over the previous couple of years, employers have begun to desert one thing they’ve been doing for many years: pre-employment screening for hashish use. Generally, the explanations are purely sensible, like not with the ability to discover sufficient cannabis-free staff to workers their workforce. Different instances, state or native legal guidelines make it troublesome or unattainable for firms to require a pre-employment check.
Figuring out what number of and which firms have eradicated the apply just isn’t a precise science, as few firms have introduced the change publicly. Right here, we draw upon our expertise as employment legal professionals to debate sensible and authorized the reason why pre-employment screening for hashish could also be fading.
A decent labor market
In line with the Facilities for Illness Management and Prevention, about 18 % of People used hashish a minimum of as soon as in 2019. That quantity probably has gone up over the previous three years. In right now’s tight labor market, some firms have discovered it untenable to show away a proportion of in any other case certified job candidates.
As an example, in 2021, Amazon introduced it now not would come with hashish in its pre-employment drug display for positions not regulated by the US Division of Transportation (DOT). As a substitute, in accordance with Senior Vice President of Individuals eXperience and Know-how Beth Galetti, the corporate would “deal with it the identical as alcohol use.” Amazon didn’t cite staffing difficulties as a rationale for its resolution, however a leaked inner memo reviewed by Vox’s Recode indicated the corporate might run out of staff to rent for its warehouses by 2024, suggesting such challenges might have been an element.
Different personal firms even have disclosed they now not are testing for hashish. Maine shipyard Tub Iron Works nonetheless conducts pre-employment drug exams however, relying on the place, doesn’t withhold job provides primarily based on constructive outcomes for marijuana. Likewise, MaineHealth, a healthcare community and Maine’s largest personal employer, has eradicated pre-employment hashish testing altogether, except for sure safety-sensitive positions.
Limitations of know-how
One other sensible motive for the transfer to desert pre-employment testing? There isn’t a dependable check to find out whether or not a person is acutely impaired by hashish at any given second. Hashish, if used constantly, causes THC to build up within the physique and linger even after durations of abstinence. The substance will be detectable in blood and urine for as much as a month and in hair for for much longer durations.
To make certain, developments in testing know-how—similar to oral-fluid testing—are starting to shut the hole on this downside. Research present hashish is detectable in oral fluids for under a day or two, which means oral-fluid testing is a timelier various to blood or urine testing. Lately, even the DOT has proposed altering regulatory necessities to allow use of oral-fluid testing as a substitute for urinalysis. Nevertheless, the difficulty of acute impairment persists, as oral-fluid testing nonetheless doesn’t reveal whether or not the particular person being examined is impaired on the time of the check. Accordingly, if the aim is to forestall people from being impaired whereas working or on the time of a drug check, present testing know-how doesn’t accomplish that.
Authorized impediments
Due to federal prohibition, legal guidelines that authorize hashish use are enacted on the state stage and might differ by jurisdiction. The restrictions of testing know-how and different concerns have led some states and cities, as a part of their statutory schemes authorizing hashish use, to make rejecting job candidates primarily based on a constructive check alone illegal.
For instance, New Jersey licensed grownup use in 2021. Beneath the state’s regulation, employers are prohibited from taking adverse motion in opposition to a person solely because of the presence of cannabinoid metabolites within the particular person’s bodily fluid from participating in authorized conduct. Though testing for hashish technically nonetheless is allowed, the outcomes of a check alone can not function the premise for an adversarial employment motion. Consequently, some New Jersey employers could also be contemplating whether or not pre-employment hashish exams create a threat that outweighs their worth.
New York Metropolis has gone a step additional. In 2020, town’s Human Rights Regulation was amended to make pre-employment hashish testing unlawful with restricted exceptions. The regulation (N.Y.C. Admin Code, tit. 8, § 8-107(31)) prohibits employers, labor organizations, and employment businesses from requiring a “potential worker to undergo testing for the presence of any tetrahydrocannabinols or marijuana in such potential worker’s system as a situation of employment.” In different phrases, merely performing the check, no matter whether or not the end result provides technique to an employment resolution, is illegal.
There are restricted exceptions to the regulation. For instance, pre-employment testing is allowed for law enforcement officials, sure building staff, and caregivers of “susceptible individuals,” amongst others. Pre-employment testing is also allowed for positions “with the potential to considerably influence the well being or security of workers or members of the general public.” The regulation offers some standards for this broad class, however there already has been litigation over which positions it covers. This might lead to employers being uncertain whether or not their open positions are exempt, inflicting them to desert pre-employment testing quite than threat publicity to authorized claims.
Last notes
There are financial, technological, cultural, and authorized the reason why pre-employment hashish testing might fall out of favor. Whether or not the present development will proceed stays to be seen.
However, though sure components weigh in opposition to continued testing, others weigh in favor of the apply. For instance, in some conditions, employers might face potential legal responsibility for accidents attributable to workers who’re below the affect of medication or alcohol. Whether or not absence of pre-employment testing might improve the prospect of authorized publicity in these conditions just isn’t black and white. In nonetheless different circumstances, employers don’t have any selection however to proceed testing primarily based on federal legal guidelines that regulate their industries.
Though there could also be ample motive to desert pre-employment hashish testing, employers ought to think about their choices fastidiously with authorized counsel earlier than doing so.
Ruth Rauls, a companion at Saul Ewing Arnstein & Lehr, concentrates her apply on representing administration in employment disputes earlier than federal and state courts and businesses. She additionally advises shoppers about compliance with the persevering with adjustments and updates to state regulation, together with particular state-law and state-court choices addressing hashish use by workers in each medical and adult-use jurisdictions.
Sondra Saporta is an legal professional on Saul Ewing Arnstein & Lehr’s labor and employment crew. Her apply focuses on aiding firms with employment litigation issues and serving to shoppers decrease their authorized threat by advising them about compliance with federal, state, and municipal legal guidelines. She additionally represents companies in business litigation and authorities investigations.