The Problem with Marijuana

By Rob Parker

HR interviews a candidate who appears to be the most suitable and qualified person for an open position at the company. A conditional job offer is made and the candidate is given instructions on how to proceed with her pre-employment drug screen.  The candidate informs HR that she will have a positive result for marijuana and reveals her medical marijuana card.  HR requests that she obtain the pre-employment drug screen nevertheless.

The results were, in fact, positive for marijuana.  HR informs her that the company has a zero-tolerance drug policy and that they will have to rescind their conditional job offer.  The candidate informs HR that they will be hearing from her attorney.  HR consults with the Executive Director who wants to know more about what happened.  After discussing it with other members of management they decide to hire the candidate in spite of the positive drug test to avoid possible litigation.

What would you do in this situation?

Possible options:

  1. Comply with your zero-tolerance policy and rescind the offer based on the fact that marijuana, medical or recreational, is still consider a Category 1 drug and is prohibited by federal law and deal with the threat of litigation if it happens.
  2. Consider the obligation to reasonably accommodate the person under state law by having an interactive discussion with the person to see if such an accommodation can be made.
  3. Do what this employer did and hire the person because 1) she was not impaired during the interview; 2) she was the most qualified candidate; and 3) it is a tight labor market and qualified applicants are scarce.

Legalized marijuana and a tight labor market are causing Nevada employers to reconsider their zero-tolerance policies and whether they should be testing for marijuana at all. Recent surveys reveal that 7% of Colorado employers have stopped pre-employment testing for marijuana and 3% have completely removed marijuana from their testing panel.

If you decide to rethink your zero-tolerance policy, you may want to consider whether you receive federal funds, which may be impacted by your decision. Also, training on reasonable suspicion drug testing is a good idea so supervisors can learn to recognize impairment.  You should consult with NAE (or your employment attorney) before making policy revisions to understand all the implications.

Since 1938, the Nevada Association of Employers (NAE) has been providing Nevada companies with services and support to help them successfully operate and grow their businesses. NAE continues to offer time-tested services and support for our members. All the while, we employ innovative practices that keep our clients at the forefront of the ever-changing business climate.