Pre-Employment Drug Screening in the Age of Legalized Marijuana

In the past, many employers would consider a pre-employment drug screening that came back as positive for marijuana use as an automatic disqualification from employment. Employers, however, are now being confronted with the reality of legalized, at least under state law, medical and recreational marijuana use. While neither Indiana nor Kentucky has, as of this writing, legalized marijuana for medical or recreational purposes, Illinois has, in fact, legalized certain medical marijuana use. People in a pilot program can apply for and obtain a registry identification card or certificate to confirm that they are legally using marijuana. Under Illinois law, it is already illegal to discriminate against employees or applicants on the sole basis of their status as a registered qualifying marijuana user unless certain limited exceptions apply.

The Illinois statute goes on to say that employers may still enforce a zero tolerance or drug free workplace policy if the policy is applied in a non-discriminatory manner. As such, employers engaged in pre-employment drug screening are encouraged to revisit their drug free workplace policies as well as their enforcement thereof. Of course, other states may have different laws. For example, Arkansas, Connecticut, Delaware, Maine, Minnesota, Pennsylvania, and possibly others have at least some type of non-discrimination statute that applies to marijuana use by employees. Finally, service providers who, under contract, are required to provide a drug free work force may wish to revisit those contractual provisions in light of potentially conflicting state laws.