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Perhaps it is time for Texas employers to reconsider their preemployment drug testing protocols. Specifically, there are reasons to skip screening for a common substance: marijuana (cannabis).
A few years ago, I would have dismissed that idea out of hand. But two major factors have changed: the overall labor market and state-by-state marijuana laws. The current labor market is extraordinarily tight. Employers are struggling to find qualified applicants.
State laws governing marijuana use have shifted. Eighteen states now allow recreational marijuana. Thirty-seven states, including Texas, have approved some form of medical use.
However, federal law still classifies marijuana as an illegal Schedule I drug, and efforts to change federal law have failed. This has created various legal conundrums.
For example, the recreational use of marijuana is legal in Colorado, and Colorado also has a law prohibiting employers from interfering with employees’ legal off-duty conduct. But Colorado residents have been disappointed to learn their employment remains at risk. The Colorado Supreme Court found that off-duty marijuana use is not protected because it remains illegal on the federal level. Colorado employers can still terminate or refuse to hire individuals who test positive for marijuana.
Texas law is far less lenient than Colorado’s. Texas law permits the use of low-THC cannabis only for medical purposes, as an adjunct to treatment for serious conditions such as epilepsy, cancer, or PTSD.
THC (tetrahydrocannabinol) is the substance in marijuana/cannabis primarily responsible for a user’s altered mental state. Drug tests detect the metabolite of THC, which can linger in a user’s body. Depending on the amount and frequency of use, a urine drug screen can detect THC metabolites up to 30 days, and a hair follicle drug test up to 90 days.
Due to this lingering effect, some employers choose to exclude THC results from preemployment drug screening. In a difficult labor market, this can be a rational choice, so long as the employer is not hiring for a safety-sensitive or federally regulated position.
For example, consider three job candidates who spend the weekend at a college reunion. The first candidate samples THC gummies, legal in that state. The second candidate illegally uses cocaine. The third candidate drinks copious amounts of alcohol.
When sent for a preemployment drug screen late the following week, the first candidate is likely to test positive for THC. The second has probably metabolized out the cocaine, and the third has long ago cleared the alcohol from his system.
It’s possible the first candidate was the most qualified, mature, and responsible. Because recreational THC use is legal in some states and because THC metabolites linger in the body, the best candidate may end up being excluded.
Unless covered by a federal or customer contract requiring preemployment drug testing, private employers in Texas may choose to skip such testing altogether, but that is risky. In addition to THC, typical 5-panel drug tests screen for opiates, cocaine, amphetamines, and PCP. It makes good sense to exclude illegal users of the latter substances.
THC use involves unique circumstances that merit special consideration. Texas employers have the right to exclude applicants who test positive. But it’s worth considering whether, in light of current circumstances, they should exercise that right.