Marijuana & Hiring: To Test or Not To Test?

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Currently, California employers are facing two troubling issues: 


1. The probability of increased marijuana usage amongst the workforce since the legalization of recreational marijuana

AND

2. An incredibly low unemployment rate of 4.3% creating a very shallow labor pool of that workforce

    Over the last 32 years, marijuana in California has evolved, first in 1996 with the legalization for medicinal use and now recently this year, marijuana has become legal for recreational use. With the decriminalization of marijuana, the negative stigma attached to the “drug” has dramatically declined, creating an increase in users and tolerance in the workforce. 
    Pre-employment drug screening has been a long-standing best practice when hiring to promote a safe workplace and reduce employers’ liability. However, with an increased proportion of the workforce using legalized marijuana, employers are starting to ask themselves if it’s realistic to continue to reject viable candidates for using marijuana. 
    Currently, California is at a record low unemployment rate of 4.3%, which is great news for our economy, but bad news for employers looking to hire talent. This shallow labor pool makes it extremely difficult to find qualified applicants. Now, the idea of eliminating an otherwise qualified candidate due to pre-employment drug testing is troubling many hiring managers. 
    Presently, employers in California are forced to find a balance between maintaining a safe work environment and the need to hire a good employee. But does it have to be one or the other? Before considering whether are not to throw out your company’s pre-employment drug screen policy, consider the following:

   According to the National Council on Alcoholism and Drug Dependence, out of the 14.8 million Americans who abuse drugs, 70% of them are employed. When employees are under the influence at work, there is an increased chance of an incident resulting in an injury or damages, increasing the employer's risk for liability due to negligent hiring or vicarious liability. This is an important concept for hiring managers and employers to thoroughly understand. 
   Negligent Liability is a claim made by an injured party against an employer based on the theory that the employer knew or should have known about the employee’s background which, if known, indicates a dangerous or untrustworthy character. 
   For example, imagine a company hired a warehouse worker with a substance abuse issue and did not conduct a background check or drug screen, then that worker while operating a forklift or any heavy machinery under the influence, seriously injured or killed another employee due to impairment. Under negligent liability, the company could be liable for not properly vetting this warehouse worker and a claim could be made that the employer should have known about this substance abuse issue had they done a drug screen. 
    The U.S. Department of Justice reported U.S. business owners to spend $140 billion dollars per year on drug abuse (including turnover). Not marijuana, but cocaine, heroin, ecstasy, methamphetamines and non-medical prescription drugs are the leading causes for concern. 
    According to the National Safety Council, employees who abuse prescription drugs are 2-5 times more likely to be late, take unexcused absences, be injured at work, file workers’ compensation claims, show violence at work, and be fired or quit within the first year of employment. 
   Most pre-employment drug panels can account for these drugs. So then does it make sense to cease pre-employment drug screens just to avoid losing a candidate to testing positive for marijuana? Which choice has less risk for employers? In an attempt to circumvent this conundrum, some companies are choosing to continue with pre-employment drug tests, but remove marijuana from their testing panel. And much like any business decision, there is still risk. Employers should carefully consider all factors and seek guidance from their HR Consultant and/or legal counsel before eliminating their pre-employment drug testing. 

Here is a short list of Pro and Cons of Pre-employment Drug Testing

Cons:

  • Narrow down an already slim labor pool by eliminating possible competent candidates
  • Opiates are a real problem and can hide in prescription drugs, which may not show up as a fail
  • There is no current test for marijuana inebriation – a candidate may test positive even if their usage was days prior 

Pros:

  • Promote safer workforce 
  • Promote a more productive workforce
  • Help decrease turnover
  • Help decrease absenteeism
  • Reduce employer risk
    • Negligent hiring
    • Vicarious liability
  • Lower WC incident rates
  • Construction and manufacturing industries
  • Drug testing today is highly accurate
  • Some states offer reduced insurance costs and WC discounts

Essential questions to consider:

  • What industry are you in? 
  • Are workers in your industry more inclined than others to use marijuana? 
  • What are the state marijuana laws where you operate? 
  • Does your business have safety-sensitive positions? 
  • Does your company have difficulty recruiting candidates? 
  • Has employee impairment at work been a problem?