Marijuana laws keep changing, but what do those changes mean for employers? Pre-employment drug tests can detect THC days or weeks after the last use of marijuana, scaring away qualified workers. Some states have already passed laws against testing for marijuana. Considering the potential impact on recruiting costs, here are four things to watch in the years ahead:
The U.S. Department of Health and Human Services (HHS) recommended that marijuana should be moved from Schedule I to Schedule III under the CSA in 2023. The Schedule I status is for addictive drugs with no accepted medical use—not a great fit for marijuana, but Schedule III drugs are still not legal for recreational use. At the federal level, decriminalization has been recommended since the Shafer Commission in 1972. Congressional reports continue to look into the potential consequences of rescheduling. In mid-January of 2024, the Congressional Research Service published the Legal Sidebar PDF, "Legal Consequences of Rescheduling Marijuana".
If marijuana is no longer a Scheule I drug in 2024, that doesn't necessarily mean it’s descheduled in all forms. The HHS may recommend treating marijuana and cannabis as a “category” of drugs like opiates, rescheduling certain products derived from marijuana. Edibles and liquid concentrate have much higher levels of THC than traditional marijuana, and they might be regulated separately.
If the HHS and DEA soften their stance against marijuana, a few states might pass stricter laws and regulations. There may be regional marijuana bans, like how the sale of alcohol is prohibited in dry counties. For employers, this is a good time to revisit company testing policies and any applicable laws. Eventually (but not any time soon), businesses regulated by federal agencies and workers with federally regulated licenses may see changes in drug testing requirements.
Despite legalization, marijuana testing is still required in many “safety-sensitive positions.” Back at the beginning of June, the American Transportation Research Institute (ATRI) released a report on the impacts of marijuana legalization in the trucking industry. Marijuana legalization doesn’t seem to increase the likelihood of fatal car accidents—stoned, paranoid drivers seem more likely to cause accidents by driving too slowly. Regardless of the driving speed, nobody wants drivers to have impaired judgment and slower reaction times.
One of the challenges with marijuana is measuring degrees of impairment. Roadside sobriety tests were designed around the effects of alcohol, and the impairment caused by marijuana isn’t the same as a high blood alcohol concentration (BAC). Researchers hope that a change in Schedule I status will make it easier to develop roadside tests for varying degrees of impairment. Federal regulations have made it hard to study the effects of marijuana combined with alcohol and other drugs, much less the higher levels of THC in edibles etc.
The ATRI report mentioned how pre-employment testing already makes it harder to attract new truck drivers. Someone who recently used marijuana may not be willing (or able) to wait 30 days to pass a pre-employment drug screening. Casual users may be willing to quit for the right job. In states that allow recreational marijuana, some workers will prefer jobs where they’re free to use marijuana on the weekends.
Given the changing landscape with legalization, it’s worth asking whether pre-employment screenings are necessary for every position. Looking at job posts on Indeed, American Addiction Centers has found that less than 2 percent of job ads mention drug screening. A Senior Contributor at Forbes, Javier Hasse, concluded that “remarkably few jobs disclose that they require drug testing before confirming employment, or during employment.” Despite the Forbes headline “Drug Testing At Work Is A Thing Of The Past”, the AAC study focused on job ads, not actual testing. As a representative of the American Addiction Center told Hasse, “Overall, we were surprised that more employers were not up front with the sobriety expectations for their employees, particularly in some of the more manual fields such as manufacturing or construction.”
If you want to collect more leads and applications, then it makes sense to avoid mentioning drug screenings. On the other hand, the extra leads aren’t very useful if the candidates can’t pass the drug test. At To Exceed, our recruiting campaigns aim to find qualified workers, not just collect dead-end leads.
According to the Society for Human Resource Management, seven states have already passed laws protecting the rights of recreational marijuana users. Other states have privacy laws that might protect off-duty workers using legal drugs on the weekends. Most workers are free to drink alcohol off duty, but drinking or intoxication “on the clock” would be very different. Similarly, many companies may choose to ignore recreational marijuana use (where legal) as long as it doesn’t interfere with work performance. When developing company policies, you’ll need to consult with a legal team and watch for changes in federal, state, and local laws.
There are different perspectives on the dangers of marijuana and which laws should change, but it's important to listen to trucking industry experts as the conversation continues. Following the ATRI report, Commercial Carrier Journal hosted an interview with ATRI Vice President Jeffrey Short, who summarized some of the key takeaways. In particular. The talk ends with three key concerns if the federal government removes the Schedule I status marijuana:
Lampe, Joanna R. “Legal Consequences of Rescheduling Marijuana” Congressional Research Service. January 16, 2024
"Legal Sidebar" PDF: https://crsreports.congress.gov/product/pdf/LSB/LSB11105
Cannon, Jason; Matt Cole “How marijuana legalization at the state level is impacting the trucking industry” Commercial Carrier Journal. Jun 29, 2023
YouTube: https://youtu.be/oE-dHMe8g4c
Short, Jeffrey“ATRI Releases New Research that Evaluates the Impacts of Marijuana Legalization on the Trucking Industry and its Workforce” American Transportation Research Institute. June 5, 2023
https://truckingresearch.org/2023/06/impacts-of-marijuana-legalization-on-the-trucking-industry/
Register with ATRI to download the report here.
Fertig, Natalie; Paul Demko“Slightly higher times: Biden administration moves to loosen weed restrictions” Politico. August 30, 2023
https://www.politico.com/news/2023/08/30/marijuana-review-move-to-schedule-iii-00113493
Sacco, Lisa N.; Hassan Z. Sheikh “Department of Health and Human Services Recommendation to Reschedule Marijuana: Implications for Federal Policy” Congressional Research Service. September 13, 2023
"Insight" PDF: https://crsreports.congress.gov/product/pdf/IN/IN12240
