Changing marijuana laws and consistently low unemployment rates are causing convenience retailers to rethink their drug testing policies.

More than 30 states now allow the medicinal use of marijuana, and 10 states and Washington, D.C., allow recreational use for adults 21 and older. But companies are not required to accommodate on-the-job use, and marijuana use remains illegal under federal law, still listed under the Controlled Substances Act as a Schedule I drug, which is defined as having no medical value and a high potential for abuse.

Courts in some states have held that the federal law pre-empts state laws concerning medical marijuana, while other states have rejected that argument.

Registered medicinal users in some states may have job protections, but state statutes with nondiscrimination provisions for medicinal use usually exclude jobs that test under federal law, Lisa Nagele-Piazza wrote for the Society for Human Resource Management. Some states, including California and Ohio, do not provide workplace protections for medical marijuana users, even if they are following state law and limit their use to off-duty hours, she wrote in an article titled “The ABCs of THC: What Employers Need to Know About Marijuana Laws.”

The ever-changing landscape of legalized marijuana can make it difficult for employers to comply with both state and federal laws and has caused many retailers to question whether their policies and practices should be revised. What remains clear is that employers should evaluate their workforce drug policies and assess whether they are prepared to handle the consequence of their policies in the wake of increased legalization and decreased stigma.

Policy Review

Recreational use of marijuana became legal in Michigan last December, but Quality Dairy Co., based in Lansing, “still follows federal laws concerning marijuana,” said Lisa Benson, director of human resources.

We watch job performance and attendance, and if we suspect somebody, we make the decision to test.

Quality Dairy, which has about 30 stores in Michigan, uses a third-party vendor to conduct tests for drugs, including marijuana and opioids, at the time of hire, before a promotion and for probable cause.

But Quality Dairy is reviewing parts of its policy, Benson said. Some managers “feel that marijuana should be taken off” the list. “It’s something we’ll have to look at. We have lost some good workers,” she said.

Beck Suppliers Inc. conducted drug screening for nine years but, following long debate, eliminated pre-employment and random drug testing in July 2018, according to June Bouillon, director of human resources. The company is based in Fremont, Ohio, and an estimated 13,000 people in Ohio carry state-issued cards that allow them to use medical marijuana.

At Beck Suppliers, “There was a lot of discussion: What is worse, marijuana or alcohol? What if it’s not being done at work?” Bouillon said. “We were looking at everything. The whole picture—the low rate of unemployment, turnover, how we do orientation and onboarding and how a job seeker sees our process.”

A big concern was how long it was taking to get from one stage to the next in the application and hiring process. “Overall, we wanted to improve the experience of the applicants and new hires and produce a quicker hire.”

Eliminating pre-employment testing and condensing the process “took a lot of frustration off the hiring process. It has made it so much quicker to get people in the door,” she said. “The benefits of not doing [tests] are greater than doing them for everybody. It has helped all of our stores—they hire when they need someone.”

Beck Suppliers does continue to test for reasonable cause, Bouillon said. “We watch job performance and attendance, and if we suspect somebody, we make the decision” to test, she said. If the employee tests positive, managers have the flexibility to fire the employee or to refer the person to the company’s Employee Assistance Program. “We give managers the ability to work with somebody who is a good worker.” Again, drug testing following accidents and testing for drivers and some other workers fall under federal agency rules.

Has dropping pre-employment testing encouraged drug users to apply for jobs? “Currently I don’t think so,” she said, but added that the company “left the option open. When we announced, we included a clause that if this becomes an issue, we could go back to the old policy.”

The California Way

California was the first state to enact protections for medical cannabis patients, beginning in the 1990s. Recreational marijuana sales became legal in the state in January 2018.

Vintners Distributors Inc. “would love” to conduct pre-employment drug tests for job applicants at its 130 Loop Neighborhood c-stores, all in California, said Valerie Kostecka, Vintners director of human resources. “In this market we can’t [test] at the moment for pre-hire; we are so eager to get candidates right now,” because of the low unemployment rate, Kostecka said—a concern voiced by many HR managers. “It’s hard enough to find candidates. The more you use the screening process, the further it reduces the applicant pool,” she said. “Once the market loosens up, I will look back into pre-hire drug testing again.”

The company does not conduct reasonable suspicion drug testing because California requires strict formalized training for such testing. “California is extremely strict on reasonable suspicion, so we really stay clear of that one,” according to Kostecka. The company has a medical advisor that managers can contact for safety and medical questions.

Some California cities don’t allow drug testing for reasonable suspicion, she said. Companies have to comply with city regulations, and “multiple cities have different regulations, especially cities like San Francisco, which are very employee friendly.” The company does conduct post-accident tests, considering city as well as state and federal requirements, she added.

Clear Expectations

Employees have many misconceptions about marijuana use, Kostecka said, and sometimes think that because it is allowed by the state for recreational use it can be used on the job. “We have had people come to work high. Employees admit it or walk in with it. They think ‘it’s legal, I can do it.’ They think it’s like a cigarette,” Kostecka said.

But Vintners Distributors has a drug-free policy based on safety, and violating that policy is grounds for termination, she said. “Even medical marijuana cannot be used while at work.”

We’ve updated our handbook to clearly define that marijuana is included in the drug and alcohol policy.

The company is working hard to make sure it clearly spells out its policies and educates employees about them, Kostecka said. “We’ve updated our handbook to clearly define that marijuana is included in the drug and alcohol policy.”

Whatever drug policy a company decides on, make sure it’s fair and consistent, said Rob Wilson president of Employco USA, a national employment solutions firm based in Westmont, Illinois. And, yes, he said, spell it out in the employee handbook.

Although companies can conduct drug tests inhouse, there are advantages to using a vendor, Wilson said. It’s not only more convenient, but it can give employees a sense of impartiality when tests are conducted by a third party.

Using a computer program to choose employees for random drug tests is another way to make employees feel that the process is fair, he added. That way “HR doesn’t have to say, ‘I picked you for this.’ You can show that the computer program made the pick; it wasn’t that the person was suspected” of drug use.

However testing is done, “you need to have a consistent message. What if because of low employment you’re willing to sometimes look the other way? What happens when you meet that rock star and they don’t pass the drug test? If you hire that person, it could be discrimination,” Wilson said. “You need to make it consistent.”

And until the conflict between state and federal laws is resolved, you should: Stay up to date on the quickly evolving marijuana laws; develop state-compliant workplace drug policies that are appropriate for your company, potential applicants and employees; apply your marijuana policies in a uniform fashion; and contact counsel if any concerns regarding specific incidents arise.