While the use of cannabis is still illegal at the federal level, 33 states now allow medical use and 11 of those states and Washington, D.C. have also legalized recreational use. Oregon has always been on the leading edge of this legalization trend, but the state has been slow to update laws surrounding cannabis use and employment drug testing.
However, despite the lack of state-mandated legal guidance, competitive pressures are driving many companies to quietly make changes to their drug testing policies — beginning with the hiring process.
Pre-employment drug testing changes
While Oregonians can use cannabis recreationally, many companies still use pre-employment drug testing that effectively excludes those users as job candidates. This puts Oregon behind some other states that have loosened their cannabis laws after legalization. For example, Nevada legalized cannabis for recreational use well after Oregon, but the state leapfrogged Oregon regarding pre-employment testing. Effective, Jan. 1, 2020, Nevada became the first state to prohibit ‘‘the denial of employment because of the presence of marijuana in a screening test taken by a prospective employee …’’
Many companies — in Oregon and many other states — are voluntarily relaxing their policies. With cannabis use becoming widespread, failing a pre-employment drug screening is also becoming commonplace. Couple that with the tight job market, critical worker shortages in certain industries, and relatively high cannabis use among younger workers, and employers are increasingly seeing drug testing as too restrictive to the job pool, which impacts overall productivity and growth.
The prospect of losing coveted, highly qualified job candidates due to drug screenings that likely reflect the legal use of cannabis during personal time is driving more companies to discontinue pre-employment testing for non-safety sensitive positions. (Some jobs will always require more rigid testing, such as those involving the use of heavy machinery or other safety concerns due to the inherent risks.)
Conforming to customer-mandated requirements — such as federal government contracts
Despite the competitive pressures to drop pre-employment testing, some companies continue to maintain strict drug-testing requirements due to client-mandated regulations. For example, it’s widely known that the federal government has not legalized cannabis usage, which impacts Oregon companies working under federal contract. However, there is some confusion regarding federal guidelines. Overall, the federal government requires companies to have a drug and alcohol testing policy, but that does not automatically mean pre-employment or random drug testing. In many cases, depending on the specifics of the contract, a “reasonable suspicion” policy may be enough.
Beyond federal government requirements, other private-client mandates may also restrict drug-testing policy changes. For example, banks sometimes require, as part of their contractor agreements, a zero-tolerance policy that includes random drug testing of all workers.
Ongoing drug testing is also changing
Excluding jobs with safety concerns or customer-mandated restrictions, many employers are also relaxing their ongoing drug testing policies. It does little to alleviate worker shortages if ongoing testing, such as random drug tests, result in high failure rates and the loss of good employees. To combat these unintended consequences, many employers are moving from random tests to testing based on “reasonable suspicion.”
The goal under these rules is to identify workers who are under the influence or using while working, which workplace rules do not condone. Reasonable-suspicion testing requires specific training for supervisors, which should be outlined by human resources and formally conducted. There are, of course, immediate signs of drug or alcohol use, such as slurred words, impaired motor skills, odor of alcohol/cannabis, or other field sobriety-style exhibitions. There are also long-term indicators, which supervisors should also be trained to observe, such as changes in performance levels, absenteeism, changes in appearance, personality differences or other indicators, which may indicate drug, alcohol, or other psychological concerns.
Human resources policies that hone in on workers who may be developing dependencies or have other issues that need medical attention can more efficiently help workers who need it without closing the company’s doors to potential or current good employees who legally use cannabis in their private lives.
Please contact Kristin, if you have any questions on drug screening and employment policies, or other issues pertaining to employment law in the age of regulated cannabis. If you need general legal support for your cannabis industry business, please reach out to one of our experienced attorneys in our Cannabis Industry Group.