For years, most employers and employees alike assumed a clean drug test was a pre-requisite for getting hired. These pre-employment drug testing panels included a list of illegal drugs, and almost always included Tetrahydrocannabinol (THC), the key psychoactive compound found in cannabis. But the times have changed as it relates to cannabis—from both social and legal perspectives. These changes beg the question: is it even worth testing for cannabis still? Perhaps even more concerning, is such testing even legal?
In addition to medical cannabis being legal in 37 states, recreational cannabis is now legal in 18 states and the District of Columbia. Considering that just 10 years ago there were only two states with legal recreational cannabis, it is not hard to see where the trend is heading. Perhaps recognizing this trend and more commonplace usage, certain jurisdictions have adopted protections for employee candidates surrounding drug testing, including outright bans on testing for cannabis. For example, New York City prohibits all employers from requiring employment candidates to submit to testing for THC. Most recently, Philadelphia enacted a similar law effective January 1, 2022, prohibiting employers from requiring job applicants to submit to cannabis testing. At the state level, Nevada has prohibited pre-employment cannabis testing since January 2020.
Setting aside these explicit prohibitions surrounding testing, though, there are some practical considerations as...
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