As more states and localities legalize or decriminalize the use of recreational marijuana, the next logical step is to preclude employers from testing for marijuana use as a condition of employment.
Why? It comes does to dollars and cents. Or, perhaps, common sense.
In places where marijuana is legal, why chill residents from purchasing a highly-taxed consumer product? Permitting local employers to test for marijuana as a condition of employment discourages potential hires from buying and using cannabis.
Nevada, New Jersey, and New York City, among others, have passed laws restricting pre-employment tests for marijuana.
Philadelphia should be next.
Sean Collins Walsh from the Philadelphia Inquirer reported here that City Council approved this bill in a 15-1 vote, which would prohibit employers from requiring prospective employees to undergo testing for the presence of marijuana as a condition of employment, under certain terms and conditions.
There are some exceptions. For example, the new drug testing rules would not apply to positions in law enforcement, any position requiring a commercial driver’s license, any position requiring the supervision or care of children, medical patients,
disabled or other vulnerable individuals, or any position in which the employee could significantly impact the health or
safety of other employees or members of the public.
Additionally, there are carve-outs for any federal or state statute, regulation, or order that requires drug testing of prospective employees for purposes of safety or security, federal contractors, and collective bargaining agreements.
These new laws notwithstanding, many employers equate marijuana use to alcohol consumption. That is, as long as it’s done responsibly and off-the-clock, cannabis use does not concern most employers. Otherwise, testing for marijuana may weed out — see what I did there? — qualified job applicants. In a tight labor market, eliminating a significant portion of your potential workforce doesn’t make much sense.
But, you know what does make sense? Checking out the replay of Friday’s edition of The Employer Handbook Zoom Office Hour. We took a deep dive into the new U.S. Department of Labor guidance and model notices to support the new COBRA premium subsidy under the American Rescue Plan Act of 2021. You can watch the replay here over on The Employer Handbook YouTube Channel.
Next up on Friday, April 30, from 12-1 PM ET, is my rockstar partner, Susan Warner, fresh off her victory in what is by far the most important ADA decision yet in 2021. The Eleventh Circuit ruled that a company’s website is not a place of public accommodation. (Her client’s website did not otherwise violate Title III either). Susan and I will address Title III of the ADA, the Gil v. Winn-Dixie victory, and proactive steps that your business can take to bulletproof itself against these types of ADA claims. Click here to register.