“My heart sank,” said Peebles, who turned to cannabis edibles in 2021 to help with shoulder and neck pain triggered by post-traumatic stress disorder. “I was worried I was going to have to give up a really great job to keep using my medicine.”
In Texas, medical use of cannabis products with low doses of the psychoactive component known as THC is legal, but it’s not protected by employment laws. That means employers are free to implement no-tolerance policies. Though Peebles assumed she’d lose out on the job, she told the recruiter about her use. To her surprise, she landed the position — despite a positive drug test.
Across America, attitudes toward marijuana in the workplace are shifting rapidly as more states legalize it and even create protections for off-hour usage. Some employers are dropping THC from preemployment drug tests, while others are taking a more lenient view when job candidates test positive. Other companies — especially in industries such as manufacturing that are strapped for talent — are advertising that they don’t require a drug test at all in hopes of luring applicants.
“Times are really changing,” Peebles said. “It made me realize that for people who are worried, having a conversation with their employers may help.”
All but three states — Kansas, Nebraska and Idaho — have legalized some form of marijuana, with 23 states and Washington, D.C., allowing for recreational use, according to the National Conference of State Legislatures. Some states — including California, New York and Minnesota — have even passed laws protecting workers’ use of marijuana when they’re not working.
While employers aren’t ditching drug tests altogether, some are reconsidering whether to continue testing specifically for THC, according to workforce drug testing provider Quest Diagnostics.
“I started seeing that trend probably sometime last year, and it’s just increasing this year,” said Kathryn Russo, principal of employer-representing law firm Jackson Lewis, referring to preemployment screenings. “It’s frustrating for them when they find someone they really like, that person tests positive for marijuana and they have to start over again.”
The origin of employer drug-testing dates to the Vietnam War, when President Richard M. Nixon asked the military to start a urine-testing program for returning service members, according to Quest. In 1988, Congress passed the Drug-Free Workplace Act and the Anti-Drug Abuse Act, setting federally mandated drug-testing guidelines that spurred an increase in testing among private-sector employers.
In recent years, even some cities known for a buttoned-up corporate air have become increasingly friendly to cannabis. In New York City and Washington, for example, where many people work in heavily regulated sectors like the federal government and finance, the heavy scent of marijuana often wafts through some streets.
More retailers are popping up to sell both products that contain cannabis and items that can help people cheat on drug tests. This year alone, New York state regulators approved 223 cannabis retail licenses, bringing the total to 251. And in some states where recreational marijuana is illegal, cannabis retailers can sell products with CBD, a non-psychoactive ingredient derived from the hemp plant, and low doses of delta-8 THC, a psychoactive cannabinoid.
In a D.C. smoke shop that has fashioned itself into a cannabis convenience store, people can purchase kits of synthetic urine to outsmart drug tests. The product comes with squirt bottles and packaged hand warmers to heat the fake urine to the proper temperature.
The pseudo-urine “includes all the typical ingredients found in human urine,” the product description claims, adding: “It even smells like pee and foams when you shake it up!”
As marijuana becomes more widely accepted, some employers say getting rid of testing makes good business sense.
Brenda Buyce, a human resources manager for assisted-living facility Park Village Pines in Kalamazoo, Mich., said drug testing for THC was eliminating a lot of good job candidates, especially young people. Though recreational use is legal in Michigan, the state-licensing authority does not permit Park Village Pines to hire anyone who tests positive for marijuana.
So in May 2022, the facility simply stopped testing for it. Park Village Pines pulled the THC panel from its drug tests and retrained managers on what to do if they suspect someone is impaired.
Testing “for a legalized substance is not in our best interest,” said Buyce, adding that she knows of only one instance since the new policy took effect when a worker was sent home. “It’s legal. They can do it on their own time. But it stays in their system and pegs them as a drug user.”
The fast-changing legal landscape around cannabis is complicating employers’ decision about whether to test. That’s especially true for big companies whose workforces are spread across multiple states with different laws, said Amber Clayton, senior director of Knowledge Center Operations at the Society for Human Resource Management. But choosing not to test could create legal and workplace safety issues for some employers.
“Employers are still figuring out, ‘How do we navigate these laws and still have the ability to employ people and keep people safe?’” Clayton said.
The risks can be severe. In positions that involve operating heavy machinery or motor vehicles, a lapse in judgment could cause injury or death, said Katie Mueller, a senior program manager at the National Safety Council. Because marijuana can affect a person’s motor skills, memory, concentration and ability to make complex decisions, even some office workers such as bankers may have trouble properly doing their jobs, she added.
Safety is a top concern for most employers. Positive marijuana tests following a workplace accident more than tripled from 2012 to 2022, data from Quest Diagnostics shows. It’s unclear whether that means more people are working while high or that more people are using during their off time, employment experts said. Because marijuana is stored in the body’s fatty tissues, it can be detected by drug tests long after its effects have worn off. So a positive test does not always mean a person is high.
“The drug test alone is no longer the single solution,” Mueller said. “We can’t just say, ‘Oh that person is positive,’ when we don’t know if that person is impaired.”
And testing can be a handicap, especially when competition for talent is fierce. In Madison County, Ala., the manufacturing industry is booming, but unemployment has been near record lows. Robert Lockwood, a shareholder at Alabama employment law firm Wilmer & Lee, estimates that half of manufacturers in northern Alabama have stopped testing workers for marijuana.
“A large number [of candidates] would disqualify,” he said. “So a lot of employers are choosing to hire qualified employees versus continuing to drug test.”
Kate Bischoff, Minnesota-based owner of employment consulting firm k8bisch, said she’s also seen a shift in manufacturing. On a drive from Fargo, N.D., to Bismarck, N.D., a few years ago, she saw a billboard advertising that a manufacturer didn’t test for marijuana. North Dakota allows medical marijuana use but not recreational use.
“There’s nothing to do between Fargo and Bismarck, so I called them,” she said. “They said they saw about a 20 percent increase in applications” after advertising the no-test policy.
Many employers recognize they’re operating in a new environment. And those that don’t will have to come to terms with it soon, employment lawyers said.
The best thing employers can do is know the laws of the areas in which they drug-test, as they’ll need to comply with different regulations across states, employment experts said. Employers can then determine whether they can test, what they can or can’t do with those tests and whether it’s worth testing at all. They should also develop a plan for what to do if they suspect a person is impaired, experts said, and clearly communicate all rules and protocols to every employee.
For Peebles, the Texas dental hygienist, communication meant everything. She now educates others about cannabis products through her own retail business. The loosened policies allowed her not only to land a job for which she was qualified, but to maintain what she says is a better quality of life.
Thanks to a nightly edible at bedtime, “I’m finally feeling more and more like I’m supposed to,” she said. “It’s amazing.”
