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Going Green—Deciding to Not Test Applicants for Marijuana
December 18, 2019
Parsons Behle & Latimer Legal Briefings


In the past, when employers drug tested job applicants, that testing included marijuana as part of the five-panel drug test. Now, as marijuana laws across the country change, many employers are asking “Should we test for marijuana in our standard drug tests?” Due to the prevalence of marijuana use and tight labor markets, many employers have decided it is better not to test for marijuana. Is it okay not to test? How do you communicate that decision to job applicants?  

Before you decide to eliminate marijuana testing, you should consider a few issues. First, keep in mind that marijuana is still illegal under federal law. That means that unless the relevant state law state otherwise, it is legal to test for marijuana use. Federal law certainly may change in the near future, so stay tuned.  

Second, you should consider the state law where your employees are located. Under Utah’s new state law, private employers are free to continue testing employees for marijuana use. Public employers in Utah are free to continue testing employees for marijuana use, but they are required to treat medical marijuana use in the same way as opiate use. That means an employee may be able to show proof that they are using medical marijuana legally. If an employee is using medical marijuana legally under state law, you will need to determine whether the marijuana use can be accommodated in their job. Under Idaho law, employers are also free to continue testing employees for marijuana use, which is still illegal in Idaho.

Third, you should ask yourself if your workforce or portions of your workforce are required to be tested by federal or state law. Certain laws or agencies, like the Federal Highway Administration, the Federal Aviation Administration and Department of Transportation require certain employees to be tested for marijuana. It is important to find out if any mandatory testing laws apply to you, your employees or your industry.    

Fourth, you should ask yourself if your company is contractually obligated to test employees. For example, you may have contracts with the federal government or other customers that require you to maintain a “drug free workplace” or to do certain drug testing. Ensure that you check your contracts. 

Fifth, you should consider whether particular jobs are safety sensitive. Even if not required by the law, it is prudent to conduct drug testing—including marijuana testing—for jobs such as operating vehicles. 

If you do the above analysis and determine that you are free not to test for marijuana, you may decide to forego marijuana testing. So how do you communicate this to potential applicants? Of course, you could simply state on your application and website that you do not test for marijuana. But, if you would rather not advertise this fact to the general public, there are other more subtle steps you can take. You can list on your application and website that your company conducts “four panel drug testing,” which is basically code for “we don’t test for marijuana.”  There are also websites that applicants can consult to determine which tests employers run. One of these websites is the True Negative. You can self-report your company to these websites. 

If you need help with these issues, our firm can help you understand how federal law affects your workforce, how state law applies, if any mandatory testing applies to your workforce and if you are contractually obligated to test. We can also help you draft compliant drug testing policies. Please contact Christina Jepson by calling (801) 532-1234 or send an email to cjepson@parsonsbehle.com to discuss this or other employment-related issues.   

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