change in the wind: it’s time for employers to review their workplace drug testing policies for 2022 | Troutman pepper

Q: I have read that some large companies are no longer submitting requests for marijuana drug testing. What should our company consider when conducting a review of our workplace drug testing policy for 2022?

A: It is true that a growing number of companies seem to be eliminating drug testing in the workplace. There are two main reasons: the expansion of marijuana legalization and the shortage of labor in the age of the pandemic.

Expand marijuana legalization

Currently, 18 states and DC have fully legalized recreational marijuana, including Connecticut, New Mexico, New Jersey, New York, and Virginia, all of which have legalized recreational marijuana use in course of the last year. Additionally, 36 states have legalized the use of marijuana for medical purposes.

Some of these states prohibit employers from taking adverse employment action against employees for legal marijuana use outside of work hours, while other states are considering creating or changing marijuana legalization laws. to include job protections or expand the coverage of existing laws.

In the wake of these laws, many employers are considering removing marijuana from the panel of tested drugs in their employment policies, at least in the absence of a reasonable suspicion that the employee is using or impaired by marijuana in the workplace. job. It is important to note in this regard that marijuana can be detected in an individual’s system for up to 30 days after use, so a positive marijuana test does not necessarily mean that the individual is currently in good health. drunk.

Labor Shortage in the Age of the Pandemic

According to the US Department of Labor, more than 4.5 million people voluntarily quit their jobs in November 2021, up from 4.2 million in October 2021 and the highest in 20 years the government has tracked. Sometimes called the “big quit,” various employment sectors have seen high turnover rates during the pandemic, with the hardest hit industries being leisure and hospitality – including those working in the arts and entertainment, as well as in restaurants and hotels – trade, transport and public services, professional services and retail. Many workers take advantage of the intense competition for employees by using it as leverage to seek better wages, hours, and non-financial benefits like work-life balance.

Although generally seen as a boon to employees, the big resignation has left many employers in the difficult position of not having enough manpower or talent to help them run their business, which has been crippling. for some people. Employers are carefully considering barriers to the hiring process due to the tight labor market, and they are loath to reject a candidate because of a positive drug test for marijuana.

Large companies are adapting their hiring protocols

Some of the largest companies in the country have observed these recent trends and have therefore begun to adapt their hiring protocols. For example, some large employers are actively lobbying Congress for the legalization of marijuana at the federal level, while announcing that they will no longer screen applicants for marijuana in their pre-employment drug testing program to jobs not regulated by the US Department of Transportation. Additionally, some companies clearly advertise that they do not test for marijuana use, which could expand their candidate pool and increase inquiries.

Time to review drug testing policy

As the global talent shortage reaches its highest level in 15 years, many employers in the United States and around the world believe something needs to change – and for many companies, that means eliminating drug testing for marijuana.

Understandably, not all employers are willing to make such a change and have valid concerns about job performance, potential impairments, safety and liability. Nonetheless, it’s important for employers to consider the combined effects of the growing legalization of marijuana use and pandemic-era labor shortages on their businesses when rethinking their policies. of drug use.

Given the ever-changing nature of marijuana legislation, we recommend that you keep up to date with the marijuana laws in your state, as well as other states where you may have applicants or employees.