Over the past year, we have had a number of employers ask about removing marijuana from the panel of illegal substances screened for applicants and/or employees. Some of these companies cite the low unemployment rate, stating that disqualifying persons for positive marijuana tests has severely reduced their pool of otherwise qualified applicants. Others indicate the increasing social acceptance of casual marijuana use, and believe that this has little effect on a person’s ability to perform their job functions.

Given that drug testing is not required for most jobs, employers have the flexibility to decide to stop including marijuana testing in their screenings. Of course, federal DOT rules require marijuana testing for commercial motor vehicle drivers and other regulated positions, and must be followed by affected employers. Employers may also hesitate before ending marijuana testing for certain safety-sensitive jobs. State and federal Drug-Free Workplace programs may also mandate continued marijuana testing.

For other employees, companies have the flexibility to decide how their drug testing and drug use policies are constructed. Employers may conclude that they will stop pre-employment and random marijuana testing, but will continue to reserve the right to conduct reasonable suspicion or post-accident testing for the substance. The drug use policy would also clearly prohibit on-duty intoxication, possession, or use of any controlled substance or alcohol, including marijuana.

We have not seen enough employers elect this change to call it a trend, but as more states legalize medical and recreational marijuana use, companies may begin to change their approach toward off-duty consumption.