HR reconsiders testing for cannabis use amid expanding legalization

Americans aren’t the only ones dabbling in microdosing. Over the last 10 years, their governments have slowly nibbled away at recreational cannabis restrictions.

Today, marijuana is used recreationally by around 18% of US adults, and 68% believe the drug should be legal. Marijuana decriminalization was on the ballot in five states this Election Day, and as laws continue shifting across the country, one lawyer told HR Brew that HR leaders will need to consider their testing policies.

The results are in. Missouri, Maryland, North Dakota, South Dakota, and Arkansas all had marijuana legalization for adults over 21 on the ballot, and voters in Missouri and Maryland approved the legalization, making recreational use of the drug legal in 21 states and the District of Columbia. Medicinal marijuana use is legal in 37 states.

“A large part of why we’ve seen this explosion in [cannabis] legalization ballot initiatives and their success is because the views have changed on this issue pretty dramatically,” John Hudak, deputy director at the Center for Effective Public Management at the Brookings Institution, told Time.

Implications for HR. Jennifer Fisher, a cannabis lawyer at Goodwin law firm, told HR Brew that employers need to pay attention to changing laws. “Even if it’s not your state, what we’re seeing and have seen in the last few election cycles is a march towards legalization,” she said.

Jurisdictions including California, New York, and DC have laws ensuring positive marijuana tests do not affect employment. Some 14 states have laws protecting workers who use medicinal marijuana, though they have caveats that prohibit workers from using while on the job to ensure workplace safety.

As cannabis is legalized in more states, employers, including Amazon, have eliminated their marijuana testing. “We’ve found that eliminating pre-employment testing for cannabis allows us to expand our applicant pool,” Beth Galetti, Amazon’s SVP of HR, said of the company’s decision.

In reconsidering their testing policies, Fisher said HR leaders should think about their relationship to criminal justice reform. “Employers should be thinking about, ‘How are we looking at employees? How are we looking at our testing policies? Are we looking at issues like prior convictions?’” she explained. “Because in a lot of these states that are legalizing, there’s also a real movement to get those records either sealed or expunged.”

Looking ahead. Fisher hopes more employers will eliminate marijuana testing for employment. “There are so many people using cannabis for so many different reasons and many of them are wellness related,” she said. “The more generally accepted it becomes, and more education there is about the benefits of cannabis, it will no longer be seen as something that needs to be tested for.”—KP

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