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Drug testing has been a staple of the hiring process fordecades, helping employers across industries to mitigate their riskin terms of cost, productivity, liability and employee well-being.This is unlikely to change anytime soon, particularly inautomotive, construction, manufacturing and other sectors wheresafety is paramount.

But with more states working to decriminalize or legalizemarijuana use, routine workplace drug screening deserves a closerlook. Last summer, Quest Diagnostics reported that the number ofAmerican workers and job applicants testing positive for drugsreached a 14-year high, with positive screens for marijuana at thetop of the pile.

What does this mean for employers?

The increased legalization—and utilization—of cannabis creates adecidedly gray area for employers. Companies need to re-examinetheir drug policies and potentially modify their approach when itcomes to vetting job candidates.

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There are multiple factors to consider. First, in this era oflow unemployment, attracting and retaining top-notch talent is achallenge—particularly in the legal market. When you make anegative marijuana drug test a requirement for employment, it hasthe potential to shrink the talent pool even further. This isespecially true for companies in states with pro-cannabislegislation, but also impacts those in states where cannabis hasnot been legalized. If that company is hiring nationally, they'relikely to see fewer candidates from legalized locations.

There's also the matter of drug testing reliability. Mostemployers use urinalysis as their go-to screening method due to thefact that it's relatively inexpensive, fast and non-invasive andcan reveal use of either illicit or prescription drugs. Thedrawback of urine testing is that it only detects recentuse of marijuana. THC, the chemical that produces marijuana'spsychoactive effects, can stay in the body for up to several weeks.This means that a positive result does not necessarily indicatecurrent, on-the-job impairment nor does it speak to frequency ofuse. So if a lawyer is a casual marijuana user on the odd weekend,does that impact their overall ability to perform their job?

Finally, research offers scarce evidence that drug tests hindersubstance abuse. In fact, it may be counterproductive to employersby discouraging well-qualified candidates from applying tocompanies that have a drug test in place.

Rethinking the status quo

Jason Tremblay, a labor and employment attorney and a partner atSaul Ewing Arnstein & Lehr, advises clients to reexamine theircurrent drug screening policies. It's worth weighing the pros andcons of a more permissive company culture, asking questions suchas, Will employee marijuana use negatively affectproductivity? Will it cause our health insurance costs torise? What are we specifically trying to avoid or preventwith drug testing?

If an organization prefers to keep its existing employee drugtesting policy, there may be ways to approach it in a more creativefashion. For example, a company may decide to do away withrandom drug testing, eliminating the time and stressinvolved with failed tests by occasional users.

“One trend we are seeing is that employers are not getting ridof drug testing completely, but they're rethinking the frequencywith which they test and/or the amount of time between testing,”explained Jonathan Havens, a partner and co-chair of Saul EwingArnstein & Lehr's Cannabis Law Practice.

Employers may also need to alter the steps they take after anotherwise desirable candidate tests positive for marijuana use.Rather than immediately retracting an offer of employment, they maychoose to make the offer contingent upon a negative drug test threeto six months down the line. Another option is having the candidateprovide legal affidavits attesting to the nature and frequency oftheir marijuana use—or provide affidavits from characterwitnesses.

Some employers are even choosing to cherry-pick which roles theydrug-test candidates for, with a focus on positions that posesafety concerns or that are customer-facing. However, doing thiscan get treacherous from a legal standpoint. In less commonscenarios, companies are moving away entirely from screeningcandidates and employees for marijuana use. But most are hesitantto take this leap of faith.

What can lawyers do?

In-house counsel candidates coming from a law firm setting areoften caught off guard when asked to participate in pre-employmentdrug screening. If you're in this position and you use marijuanarecreationally in a legalized state, you're at risk. Since cannabisis still federally illegal, a failed drug test could disqualify youfor a job and leave you with no recourse.

However, if you have a disability under state law and are alegally authorized medical marijuana card holder, Tremblayrecommends disclosing your drug use and explaining why. “There arecertain laws that protect you from being denied a job because of anunderlying disability. If the company retracts the offer, in somestates, they have to accommodate you.”

Tremblay noted that timing is everything. “If the interviewingcompany requires a drug test following a conditional offer ofemployment, be proactive about having a conversation with the headof HR or other appropriate person prior to the drug test. If youvolunteer the right information to the right people at the righttime, you'll be in the best position to land that job.”

Above all, don't stay quiet and assume you're automaticallyprotected because you have a medicinal use card. In the 33 U.S.states where medical use of cannabis is authorized, employerscannot refuse to hire solely on the basis of a failed drug test ifa candidate is a valid medical card holder. In the remaining stateswithout legalization, however, employees can be fired if they testpositive for marijuana—even if they hold a medical card fromanother state.

Marijuana laws across states can be tricky to navigate. Ifyou're an employer, a recruiter can be a useful partner to helpdetermine what you're trying to achieve through drug testing andhow to set your filters accordingly. On the candidate side, it canbe essential to have an ally to interpret what the prospectiveemployer wants and help you navigate difficult conversations. Whenit comes to employee drug testing and the ever-changing landscapeof cannabis legalization, there is no one-size-fits-allsolution.

Brandyne Russell and MindySircus are managing directors in the In-House Practice Group ofMajor, Lindsey & Africa based in Chicago.

Read more: 

• Marijuana use among workers increasing, opioidsdecreasing
• The decline of the employment drugtest
• Focus on employee marijuana use shouldchange