Employers mellow out, hire stoners

WASHINGTON — FPI Management, a property company in California, wants to hire dozens of people. Factories from New Hampshire to Michigan need workers. Hotels in Las Vegas are desperate to fill jobs.

Those employers and many others are quietly taking what once would have been a radical step: They’re dropping marijuana from the drug tests they require of prospective employees.

Marijuana testing — a fixture at large American employers for at least 30 years — excludes too many potential workers, experts say, at a time when filling jobs is more challenging than it’s been in nearly two decades.

“It has come out of nowhere,” said Michael Clarkson, head of the drug testing practice at Ogletree Deakins, a law firm. “I have heard from lots of clients things like, ‘I can’t staff the third shift and test for marijuana.'”

Though still in its early stages, the shift away from marijuana testing appears likely to accelerate. More states are legalizing cannabis for recreational use.

And medical marijuana users in Massachusetts, Connecticut and Rhode Island have won lawsuits in the past year against companies that rescinded job offers or fired workers because of positive tests for cannabis. Before last year, courts had always ruled in favor of employers.

The Trump administration also may be softening its resistance to legal marijuana. Labor Secretary Alexander Acosta suggested at a congressional hearing last month that employers should take a “step back” on drug testing.

“We have all these Americans that are looking to work,” Acosta said. “Are we aligning our … drug testing policies with what’s right for the workforce?”

There is no definitive data on how many companies conduct drug tests, though the Society for Human Resource Management found in a survey that 57 percent do so. Nor is there any recent data on how many have dropped marijuana from mandatory drug testing.

But interviews with hiring executives, employment lawyers and agencies that help employers fill jobs indicate that dropping marijuana testing is among the steps more companies are taking to expand their pool of applicants to fill a near-record level of openings.

Businesses are hiring more people without high school diplomas, for example, to the point where the unemployment rate for non-high school graduates has sunk more than a full percentage point in the past year to 5.5 percent, the steepest such drop for any educational group over that time.

Excluding marijuana from testing marks the first major shift in workplace drug policies since employers began regularly screening applicants in the late 1980s.

They did so after a federal law required that government contractors maintain drug-free workplaces. Many private businesses adopted their own mandatory drug testing of applicants.

Most businesses that have dropped marijuana tests continue to screen for cocaine, opiates, heroin and other drugs.

But James Reidy, an employment lawyer in New Hampshire, said companies are thinking harder about the types of jobs that should realistically require marijuana tests. If a manufacturing worker, for instance, isn’t driving a forklift or operating industrial machinery, employers may deem a marijuana test unnecessary.

Yet many companies are reluctant to acknowledge publicly that they’ve dropped marijuana testing.

“This is going to become the new don’t ask, don’t tell,” Reidy said.

In most states that have legalized marijuana, businesses can still, if they wish, fire workers who test positive. Yet Maine became the first state to bar companies from firing or refusing to hire someone for using marijuana outside work.

Companies in labor-intensive industries are most likely to drop marijuana testing. By contrast, businesses that contract with the government, are in regulated industries or have safety concerns involving machinery are continuing marijuana tests, employment lawyers said.

The stigma surrounding marijuana use is eroding, compounding pressure on employers to stop testing. Sixty-four percent of Americans support legalizing pot, a Gallup poll found, the highest percentage in a half-century of surveys.