The law concerning pre-employment and employee cannabis (i.e., THC) testing is evolving on a daily basis across the United States. Employers should consult with a cannabis attorney and consider the following before testing:
- What is the employer hoping to accomplish by testing? Many testing methods merely confirm the presence of THC metabolites rather than quantify the amount of THC. In other words, these tests won’t tell an employer much about how recently an applicant or employee consumed cannabis, or how much. To make matters more complicated, there is little scientific consensus as to what cannabis “impairment” looks like.
- Has the employer’s jurisdiction legalized medical and/or adult-use cannabis? Many states that have legalized medical and/or adult-use cannabis have not updated employer/employee cannabis-related rights, but the writing is likely on the wall if an employer finds itself in a jurisdiction that has legalized. In the same vein, employers in legalized jurisdictions ought to tread carefully treating medical cannabis recommendations differently than typical medical prescriptions.
Unless an employer has a legal obligation to test for THC (job duty, funding requirement, etc.), an employer may want to rethink its THC testing policy.
DISCLAIMER: THIS INFORMATION IS STRICTLY EDUCATIONAL AND DOES NOT CONSTITUTE LEGAL ADVICE.