Should Employers Remove Marijuana Drug Screens from the Hiring Process?

Aaron Phillips
Posted: Friday Sep 20th, 2019

In recent conversations with business owners, nonprofit executives and other key leaders, Decision Associates is consistently hearing that more than half of applicants who apply for entry-level roles are failing drug tests, primarily due to marijuana usage. This difficulty in the hiring process has led some of our clients to change their drug screening process. Before diving into this piece, we want to note that our research is not meant to endorse one decision over the other. Rather, we will outline the key considerations for leaders who need to make informed decisions about their hiring processes.

The legalization of medical marijuana has employers feeling uncertain about their hiring policies. There seems to be two overarching schools of thought on this issue. The first believes that if you're a marijuana user, then you're not reliable, and for that reason, shouldn't be hired. The second is a more open perspective that essentially says, "If you're only smoking off duty, and you can do the job safely and effectively when requested, then that's all that matters."

Regardless of your current convictions and policies, it's vital to look past the stereotypes associated with marijuana users and acknowledge the fact that a workplace completely free of marijuana users is virtually impossible to maintain. To get a clearer understanding, we sat down with Mark Kuhar, attorney and shareholder at Knox Law Firm, to comment on the nuances of employment and Pennsylvania medical marijuana law.

Let's Start with Legality

All across the United States, marijuana laws are changing on a nearly monthly basis. It's faster than most employers can keep up with. But, while legalization and decriminalization are growing at the state level, there have been few changes at the federal level.

"Smoking marijuana is as illegal as it's ever been," notes Kuhar. "Using marijuana in any form, even for medical purposes, is a federal crime." Consequently, every time a person visits their local dispensary, smokes recreationally, or even ingests it under their state's medical regulations, it's still a crime in the eyes of Uncle Sam.

In Pennsylvania, recreational marijuana is still illegal, and even medical marijuana has stringent terms. "There are about a half dozen methods of using medical marijuana," says Kuhar. "But, you're not allowed to smoke marijuana in the state of Pennsylvania." Kuhar is right on; there are six forms in which medical marijuana may be dispensed to a patient or caregiver:

  1. Pill
  2. Oil
  3. Topical forms, including gels, creams or ointments
  4. Vaporization or nebulization, excluding dry leaf or plant form
  5. Tincture
  6. Liquid

Furthermore, everyone from doctors to patients has to be authorized to acquire, administer, possess, use, and/or transport medical marijuana. For many employers, the method by which potential and current employees use marijuana really isn't a big part of how use is viewed, as much as the idea of using marijuana in and of itself.

To Screen or Not to Screen?

So, where does this leave employers and employees? After all, marijuana in any form is illegal on a federal level. Yet, it's also illegal in Pennsylvania to discriminate against an employee for his or her status as a registered medical marijuana patient.

The question of whether to screen isn't just confusing because of the duality of federal and state laws; it's often an ideological question as well. Because, while Pew Research found that six in ten Americans support even recreational marijuana legalization, that still leaves a significant minority who oppose the idea. There are massive partisan, religious and demographic gaps in opinion.

When it comes down to business, employers need to think as objectively as they can about the use of marijuana by staying current on the issues. If you ask Kuhar if employers should or should not screen, he'll tell you matter-of-factly:

"I would never tell an employer you should screen...Employers should educate themselves about the reality of active TCH (the psychoactive component in marijuana) versus THC metabolites, review the literature about whether or not marijuana is a gateway drug, and then make decisions based on whether or not they want to exclude a significant portion of their applicants."

THC Versus THC Metabolites

Understanding the difference between active THC and THC metabolites is critical to determining whether or not to screen for marijuana. Without going too far into the details, let's take a quick look at the important compounds in this controversial drug.

THC, or delta-9-tetrahydrocannabinol is a cannabinoid molecule found in cannabis and is the primary chemical that gets people "high." In essence, it's what most employers are concerned about when they think of their employees or potential hires using marijuana.

But here's the issue: the impairment from using marijuana only lasts a few hours. In a fashion similar to how alcohol is processed, THC is metabolized by the liver into a THC metabolite called THC-COOH. It is the THC metabolite that's detected in blood, hair, and most commonly, urine tests. However, the presence of THC metabolites in someone's system is not an indication of current impairment.

"Depending on the person and circumstance, active THC stays in a person's system for about as long as alcohol does," says Kuhar. In fact, he outlines a helpful scenario for employers to consider:

Imagine an employee goes out for drinks after work on Friday. He or she dinks to the point of legal intoxication. Come Monday, do you think that employee would still be inebriated? No.

Now imagine another employee goes home Friday night and uses a vaporizer to administer marijuana for his or her medical condition. Come Monday, that employee will also be fine to work, despite having THC metabolites remaining in his or her system.

"You can screen for THC metabolites with a urine test, but that's not going to tell you anything about whether or not someone is high when the sample is collected," notes Kuhar. "In order to determine if the employee is impaired, you need to test for active THC."

There are three main ways to test for active THC:

  1. Blood tests
  2. Saliva tests
  3. Behavioral observations made by a trained HR professional or other leader.

Employers tend to think, you're either a user or you're sober. But that's simply not the case. Individuals can use marijuana medicinally - and even recreationally, albeit illegally - and be responsible, productive, sober employees. Some are. Some are not.

"Unless they have active THC in their system while working, you can not hold their medical marijuana use against them," Kuhar says. "You have to let that go or you will violate Pennsylvania's Medical Marijuana Act and/or the Pennsylvania Human Relations Act's anti-discrimination provisions...However, do you have the right to screen out recreational marijuana? Absolutely! Just the same as you always did."

The Gateway Drug

There is another prominent argument that seems to motivate employers to screen. It's the fact that marijuana is viewed by many as a gateway drug. "There is such an intuitive appeal to the gateway argument that I'm certainly not going to dismiss it," says Kuhar. "But a lot of marijuana activists say alcohol and tobacco are equally gateway drugs, and we don't screen for them during the hiring process."

According to the National Institute on Drug Abuse (NIDA), those who used marijuana were more likely to develop and alcohol disorder and/or nicotine addiction. However, the NIDA also found that the majority of people who use marijuana do not go on to use other, 'harder,' substances." Further, researchers found that alcohol and nicotine also prime the brain for a heightened response to other drugs are "typically used before a person progresses to other, more harmful substances."

Diving into the Talent Pool

Kuhar emphasizes that testing for marijuana has to be a serious consideration for employers. "You have to ask yourself how this will impact hiring and retaining employees...They're willing to work for you, serve your customers, but you don't have them because you screened them out," Kuhar says. "So, the benefit to your business should be clear if you're going to screen for marijuana."

It's hard to say if there is a benefit for many employers. If the employee is sober and productive during work hours, the effect of off-duty use is negligible. "The benefit of testing is more amorphous for some employers," says Kuhar. "Increasingly, some employers are rejecting the idea that recreational marijuana use correlates with poor performance, dangerous behavior, or unreliability."

Should I Screen for Marijuana?

There is a line of thought that focuses more on the signs of impairment on the job and far less on off-duty use. Experts, including Kuhar, are recommending this shift from merely screening and detection to enhancing an organization's capacity to notice red flags for intoxication. But it's important to note that it doesn't have to be one or the other.

"It's interesting that it's presented as a juxtaposition or a duality of options," says Kuhar. "Stop screening or start looking for impairment. I think it's a reasonable reaction to say, 'Hey, maybe and employer should do both.'"

While Pennsylvania law does protect medical marijuana users from discrimination, it also allows employers to ensure a safe workplace. This means medical marijuana users with active THC in their blood cannot operate or be in physical control of chemicals, high-voltage electricity, or other public utilities. Furthermore, employees can still be disciplined for being under the influence of marijuana - even if it's medicinal - should their conduct fall below acceptable standards.

So, should you screen for Marijuana? The best answer has two parts.

First, no one should ever be impaired on the job, especially if there are chemicals, vehicles, or heavy machines involved. It's critical that you equip your staff with the knowledge to spot signs of impairment. If your goal is to ensure your employees aren't using marijuana recreationally, then you should screen. Just know that this will limit your candidates, as close to one in ten Americans using marijuana.

Second, consider only testing for active THC upon signs of impairment. This will ensure you have the deepest pool of candidates from which to choose. "There are some super bright people who use recreational marijuana. Employers should carefully consider whether excluding them helps or hurts their workplace," notes Kuhar.

Build the Right Team

If you need help building your team, reach out to Decision Associates. We'll help ensure you attract, retain and hire the best employees and build HR policies that facilitate growth. Contact Aaron Phillips at 814-566-7791 or email AaronPhillips@DecisionAssociates.net.

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