To Test or Not to Test (For Marijuana)?
By Brian P. Goodman, Storm Larson and Mai Chao Chang
Many states have legalized the use of marijuana for medicinal or recreational use. Wisconsin is not one of those states. Nevertheless, many employers in Wisconsin struggle with whether or not to test applicants for marijuana use after making applicants a contingent offer of employment. Compliance with the law is only one important consideration for employers evaluating a pre-employment drug testing program for marijuana.
Employees in positions subject to federal Department of Transportation drug testing regulations need to be drug tested for marijuana prior to employment. Employees who work in states where pre-employment drug testing for marijuana is restricted, such as Minnesota, should generally not be drug tested (unless a legal exception applies such as employees in safety-sensitive positions or those subject to DOT drug testing regulations).
Between these two extremes, employers have a fair amount of discretion. In a challenging hiring market, testing applicants for marijuana might make it difficult to fill certain positions. Where the safety risk of these positions is low, an employer might choose not to drug test these positions. Instead, employers can address potential drug use by employees by utilizing reasonable suspicion drug testing if there is evidence that an employee might be intoxicated at work.
Employers operating in multiple states should weigh the potential burdens of maintaining multiple different testing programs for applicants based on applicable state laws against the potential risks of eliminating pre-employment drug testing for marijuana across the board. Ultimately, employers will have to carefully assess all the relevant factors, including legal compliance, when making this determination.
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