It’s been nearly 30 years now since California accelerated its movement to legalize medical marijuana.
In 2012, Colorado and Washington became the first states to legalize recreational use of marijuana. Since then, many states have followed suit, and now, states with no comprehensive marijuana legalization are well in the minority.
When Peopletrail was officially incorporated in 2005, most companies would request THC on their drug testing panels and include marijuana on their list of zero-tolerance substances. However, many employers have been required to change their employee drug screening policies and practices to align with changing state laws. New York, for example, is a state where employers are prohibited from testing current and prospective employees for marijuana. In Nevada, job denial based on a positive THC test result is not allowed.
Employer discretion is often permitted in states where such rigid policies have not been implemented. However, conversations about the federal legality of marijuana are now well underway. So, where does this leave employers? Let’s consider some important insights.
Marijuana vs. Cannabis: An Important Distinction
First things first, we need to differentiate between a few terms.
Cannabis is a general term that most commonly defines two plant species: the Cannabis sativa and Cannabis indica plants. Cannabis and marijuana are not entirely interchangeable. Federally legal, commercially distributed products such as CBD and hemp are derived from Cannabis, as is marijuana.
Marijuana refers to the parts of a cannabis plant that contain large amounts of a psychoactive compound known as tetrahydrocannabinol (THC). Marijuana is currently a federally controlled substance due to its ability to impair.
Hemp is also derived from cannabis plants but contains only very trace amounts of THC (less than 0.3 percent). Hemp, and even consumable hemp products such as CBD, remain federally legal, and many states don’t regulate their sale. While THC concentrations in hemp are very low, it is still possible for hemp-derived products to trigger a positive THC test result– a thing that creates some challenging ambiguity.
Now, the content of this article explicitly deals with marijuana, its impact and legality when it comes to pre-employment screening, as well as future implications changing legislation around marijuana may have on employers.
State Legislation
As of the middle of 2024, 38 states have legalized comprehensive medical marijuana programs and/or recreational markets. 24 of these states have passed laws that protect an employee’s off-site use of marijuana. The states that do not have a comprehensive marijuana legalization program either currently in effect or scheduled to take effect are as follows:
- Idaho
- Wyoming
- Nebraska
- Kansas
- Texas
- Iowa
- Wisconsin
- Indiana
- Tennessee
- South Carolina
- Georgia
- North Carolina
Marijuana-friendly laws are accelerating through state legislatures more quickly than ever. So, while the states above may not have a policy yet written into law, that could certainly change.
Federal Discussions
The question now at the forefront of many people’s minds is: Will marijuana be rescheduled?
Marijuana is currently a Schedule I substance, along with other substances recognized as having a high abuse potential and no currently accepted medical use.
As the medical benefits of cannabis undergo more study, congress is evaluating the substance’s scheduling, considering recategorization to a Schedule III substance where medical use is well accepted.
A formal petition with growing support is known simply as the Marijuana Rescheduling Petition. This petition has garnered signatures from politicians and individuals with market influence. Additionally, the Department of Health and Human Services (HHS) has recommended that the DOJ and the DEA reschedule marijuana. This petition is under review, and federal officials and agencies are still debating the topic.
However, a hearing is now scheduled for December 2, 2024, where the DEA will discuss the matter.
A re-scheduling from Schedule I to Schedule III would have a significant impact on how marijuana is considered nationwide. It would remove it from the company of illegal street drugs such as LSD to the company of medically-accepted substances such as codeine or testosterone.
A Note on Zero-Tolerance Policies
Zero-tolerance drug policies are beginning to grow unpopular, particularly concerning THC. Even if an employer determines there are no prohibitive laws against marijuana-related adverse actions, there is still not a clear green light. Some recent lawsuits have shown favor towards the employee in matters regarding marijuana-related adverse action. There have also been cases where the state rules in favor of the employer but the federal court reverses the ruling.
Zero-tolerance marijuana use policies, even in states with no clear prohibitive laws, can still be risky.
Employer Takeaways
- Marijuana and cannabis are not interchangeable terms
- Use of federally legal, hemp-derived products can possibly cause a positive THC test
- The federal status of marijuana may soon be changing
- State marijuana laws are quickly evolving
- Zero-tolerance policies regarding THC come with risk
- Depending on the state, an employee’s off-duty marijuana use may be protected
If you have questions regarding your drug screening practices and processes, feel free to contact us.