U.S. companies rethinking drug testing amid legal cannabis, but some will still fire you for it

Employees at packing stations are seen at Amazon’s Kent, Wash., fulfillment center on June 11, 2020. Ken Lambert | The Seattle Times

As people begin to filter back into the office after a year-and-a-half in Zoom exile, the growing ranks of recreational cannabis users might want to take a peek at their employee handbook before lighting up.

Marijuana, which went from a controlled substance to a booming industry in Illinois during the pandemic, may still get you fired.

Potentially outdated cannabis employment policies could turn a socially acceptable weekend pot party into grounds for dismissal. With cannabis detectable by some tests for up to 30 days, even a dalliance can have career consequences.

But with an ongoing labor shortage and a sea change in sentiment for marijuana use, the onus may be on employers to get with the times.

“Employers are having to look at this issue and reevaluate because in places they can’t hire qualified people,” said Eric Berlin, an attorney with the Chicago-based cannabis legal team at the law firm Dentons. “People are saying this is legal, and I like to do this more than I want a beer. And so I’m just not going to work for you.”

Illinois legalized recreational marijuana in January 2020. Then the pandemic hit, work from home became the norm and the marijuana industry blossomed. That has forced many companies to rethink cannabis employment policies, with everything from testing to zero-tolerance on the table.

Marijuana screening of prospective employees has long been standard practice, with a positive test result often precluding a candidate from being hired. But as state-by-state legalization gains traction, it is harder to justify, setting up a potentially monumental culture clash as employees return to the workplace, Berlin said.

Total Illinois marijuana sales reached $1.03 billion last year, including $669 million in recreational weed and more than $366 million in medical sales. Through June, the state is on pace to generate $1.65 billion in sales for 2021.

Gov. J.B. Pritzker signed a bill July 15 awarding 185 new dispensary licenses with a social equity focus through three lotteries in July and August. They will be added to the 110 recreational dispensaries already licensed in Illinois.

Meanwhile, the U.S. Senate is considering a bill to essentially legalize marijuana at the federal level. Introduced by Senate Democrats July 14, the Cannabis Administration and Opportunity Act would remove marijuana from the Controlled Substances Act, recognize state law as controlling its use and establish a federal excise tax of up to 25% on cannabis products, similar to the tax imposed on alcohol and tobacco.

“If this bill were to pass, it would be like rocket fuel for the industry,” Berlin said. “Anything that allows capital to flow more smoothly into the industry will have enormous impacts right now.”

In June, Dave Clark, chief executive of Amazon’s consumer business, posted that the online giant was changing its drug testing policy and would no longer disqualify people from working at Amazon if they tested positive for marijuana.

“We will no longer include marijuana in our comprehensive drug screening program for any positions not regulated by the Department of Transportation, and will instead treat it the same as alcohol use,” Clark said. “We will continue to do impairment checks on the job and will test for all drugs and alcohol after any incident.”

Amazon has more than 36,000 full- and part-time employees in Illinois covered by the cannabis policy change at nine fulfillment centers, eight delivery stations and 28 Whole Foods grocery stores, among other locations, Amazon spokeswoman Caitlin Polochak said.

Buona Beef, the 40-year-old Berwyn-based chain, reconsidered its policy “shortly after” Illinois approved recreational marijuana use last year, co-owner Joe Buonavolanto said.

The company has 25 restaurants in the Chicago area and recently opened its 26th location in Denver. It has about 1,500 full-time employees across the chain, with wages starting at $15 an hour.

All applicants for store management and executive positions with Buona Beef must pass a drug screening test. In the past, a positive test for cannabis would preclude employment, but that is no longer the case, Buonavolanto said.

“There’s a five-panel standard drug test that the different labs provide, and that hasn’t changed — they haven’t eliminated marijuana,” Buonavolanto said. “We’re just not making a hiring decision based on whether or not somebody tests positive for marijuana.”

Buona still prohibits getting high on the job, and reserves the right to do random drug testing for employees, especially for those involved in a workplace accident, Buona said.

“We have a zero-tolerance drug and alcohol policy while working, and that hasn’t changed, whether it’s legal or not,” Buona said.

While serving up a beef and sausage combo with sweet peppers is a long way from landing a 747, the use of marijuana is also prohibited by the Federal Aviation Administration for safety-sensitive positions such as pilots, flight attendants, air traffic controllers and aircraft maintenance workers.

All such positions are subject to random drug testing, including for cannabis, under Department of Transportation regulations, an FAA spokeswoman said.

Some Illinois employers continue to take an equally hard line.

Cincinnati-based Fifth Third Bank, which has 178 branches and nearly 3,000 employees in the Chicago area, screens all job candidates for drugs, including cannabis. If they test positive, they don’t get hired.

“Because we are federally regulated and cannabis is not legal at the federal level, we still do a five-panel drug screen and cannabis is included,” said Fifth Third spokesman Larry Magnesen. “If someone fails that screen, any offer is rescinded, no matter what state.”

Magnesen said the cannabis employment policy was examined by the bank within the last few months, and that any change in federal law would trigger another review.

Fifth Third also reserves the right to test an employee when there is “reasonable suspicion” they are intoxicated or under the influence of drugs on the job, Magnesen said. Those that test positive are “subject to disciplinary action up to and including termination,” he said.

In some states, Fifth Third can test for cannabis, but may not be able to rescind a job offer if the candidate can produce evidence that it was prescribed by a medical professional. Illinois is not one of those states.

Ford’s Chicago Assembly Plant, which makes the Ford Explorer, Lincoln Aviator and Police Interceptor SUVs, has been mostly closed since April because of the global semiconductor chip shortage. The nearly century-old plant on the city’s Southeast Side normally has about 5,200 employees working three shifts.

Every new employee at the plant has to pass a drug screening test that includes cannabis, Ford spokeswoman Kelli Felker said. Those that test positive generally do not get hired — even if they have an Illinois medical marijuana card, she said.

While Ford screens new hires, it does not conduct random drug testing, Felker said. But the automaker reserves the right to test employees suspected of being intoxicated or involved in a workplace accident, with positive cannabis results dealt with on a case-by-case basis, she said.

Strict cannabis employment policies may seem at odds with legislative and social trends, with recreational marijuana use now legal in 18 states and medical marijuana legal in 37 states.

As more states legalize recreational weed, 91% of U.S. adults say marijuana should be legal in some form, including 60% that approve of recreational use, according to a Pew Research study published in April. One in four Americans used cannabis in some form during the first 12 months of the pandemic, with nearly a fourth of those trying it for the first time, according to a YouGov study.

Cannabis research firm Headset projects legal U.S. weed sales to surpass $30 billion in 2022.

“The notion that you can just maintain zero-tolerance testing for even non-safety sensitive positions throughout the United States, I predict those days are going to be fading away,” Berlin said.

The ongoing labor shortage may speed up the process.

A quarterly survey released last week by the National Association for Business Economics found that 39% of businesses were experiencing a worker shortage, with 28% of respondents expecting it to last into next year or beyond.

One potential deterrent for job applicants at employers that screen for marijuana is that it can remain in your system for up to three days after a single use, and up to 30 days for heavy users, according to the Mayo Clinic.

For some companies, marijuana testing has continued unabated during the pandemic, with employees sending in saliva test kits remotely while working from home, said Peter Cappelli, head of the Center for Human Resources at The Wharton School at the University of Pennsylvania.

While employers still cite the federal illegality of marijuana as a reason for continued testing, the shifting political winds may make that argument less relevant. Cappelli said weeding out marijuana users from the employment pool may simply be the path of least resistance — at least for now.

“I think the reason this is still going on is inertia — we’ve always done it — and to some extent politics,” Cappelli said. “No one wants to look as though they are soft on drugs.”

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