A client recently raised interesting legal questions with regard to their pre-employment drug testing program. The business faces a tight labor market, and noticed that they were losing otherwise qualified applicants for employment who tested positive for marijuana on the pre-employment drug test. The client asked about legal risks involved if it stopped using marijuana use as a disqualification from employment.

Very few courts have indicated that employers have a legal duty to drug test applicants, and fewer have discussed whether off-duty marijuana use can be used as evidence of negligent hiring by the employer. Federal DOT regulations and rules governing some federal contractors mandate marijuana testing and disqualification from work in some circumstances. Employers may conclude that for certain safety-sensitive positions, evidence of marijuana use should serve as a clear warning about that person’s ability to safely carry out job functions.

For other jobs, employers may conclude that evidence of off-duty marijuana use should not serve as grounds for exclusion from work. While state drug testing rules may require that the panel screenings include marijuana, it is up to the employer to decide what to do with such information. In our situation, the employer did not announce this change to employees or applicants, and continues its strict prohibition against use or possession of marijuana at work, including reasonable suspicion testing of employees. As more states legalize recreational and medical use of marijuana, employers may need to adapt their drug policies to maintain a qualified workforce.