Should Background Screening Include Drug Testing? Reevaluating Drug Testing Policies

Background Screening | April 11, 2023

In light of changes to the legality of marijuana use over the last two decades, companies face the question of how they should proceed in screening contractors for this substance and others. PlusOne Solutions offers insights on these recent changes and questions they raise. 

Drug screening has been a common part of the background check process for many roles since the 1970’s. Information collected from drug testing can help companies determine whether or not the contractors they are considering or already work with are going to maintain a safe work environment for their customers and employees. However, drug policies in the United States have seen a change, primarily within the last decade, with the legalization of marijuana in many US states. This development now calls for a reconsideration of standards for drug testing policies in contractor background checks. 

50 Years of Testing and the Legalization of Cannabis 

Widespread drug testing in the United States had its beginnings in 1971, when President Richard Nixon called for urine drug testing on the military personnel who were returning from the Vietnam war. The test results gathered from this testing produced concern in how many returned positive results. From this time, urine drug testing has continued to be a method used to test in the US. In recent decades, the issue of how and when to test for marijuana use in the workplace has been a topic of debate as laws on the recreational and medicinal use of the drug continue to change.

The legalization of marijuana began in 1996 when California became the first state to legalize medical marijuana. This decision has gradually been adopted by other states. In 2012, Colorado and Washington were the first states to legalize adult recreational use of the drug, and by 2021, the majority of US states had legalized the medicinal and recreational use of marijuana.  

What This Means For Businesses

This change in legislation means that organizations have had to reconsider the methods and policies of drug testing when considering candidates. Even if an individual is tested and produces a positive test result, organizations may still need to decide whether or not they will agree to work with the individual or not, or upon what conditions they will work. 

Because the use of marijuana is no longer illegal in most states, organizations must consider how to handle positive drug test results. Not testing for the presence of THC continues to present concerns for health and safety guidelines in the workplace. If an individual tests positive for THC, they present a higher risk of an accident, or even fatality, occurring on the job. 

Possible Risks Posed By Individuals Who Work Under The Influence Of Marijuana 

While the use of marijuana as a recreational drug is now legal in most US states, many organizations still prohibit contractors working under the influence of marijuana. This is because the effects of marijuana pose safety and job performance risks to the individual who is under the influence of the drug as well as those with whom they are working. The effects of marijuana on the brain impact cognitive motor function and can result in:

• Improper use of machinery and other equipment 
• Increased absenteeism
• Lack of concern for the safety of one own self and that of others
• Impaired concentration that can result in accidents on the job and other health and safety risks

Each of these possibilities also poses significant financial and legal risks to businesses that work with contractors or contractor networks. If marijuana usage is not detected through means of drug testing, the likelihood that damages and safety risks will occur increases.

Why Is Drug Testing Considered An Ethical Issue?

Marijuana is currently considered a schedule I drug at the federal level, and organizations still have the right to refuse to work with contractors who do not comply with testing standards or whose tests yield positive results for marijuana use. However, many people still feel that this is an infringement on personal privacy. Companies maintain the right to randomly drug test those with whom they work, but without serious reason to perform a drug test on an individual, some may argue that this type of drug testing is unethical.  

The Question Companies Face: Should background screening include drug testing?

The question that most companies now face is whether or not they should still include marijuana testing in their preliminary background checks. If those who they are testing produce positive drug test results, companies must be fully aware of the state’s laws on recreational and medicinal marijuana use. Otherwise, the individual could file a claim for unlawful discrimination. Another consideration many companies have had to make is whether or not to simply eliminate marijuana from their drug testing, which would still allow for the company to detect the unlawful use of substances without facing any lawsuits that could result from a test result yielding use of marijuana. 

Every state still permits companies to hold contractors accountable for maintaining a safe work environment, so the question of continued drug testing is debated. Is the cost of a contractor filing legal claims for drug testing greater than the consequences of someone working under the influence? Laws and decisions made on this topic continue to be adjusted and it is important that businesses continue to remain aware of these changes. It is important to respect the rights of each individual while still working for the highest level of safety possible. 

Contact PlusOne For Your Contractor Background Screening Needs 

PlusOne Solutions is committed to backing this process and supporting your organization as it navigates the changing drug testing landscape. Contact us today and allow us to help you create a safer environment for your business, your customers, and your contractors.

Contents are provided for information purposes only and should not be construed as legal advice. Users are reminded to seek legal counsel with respect to their obligations and use of PlusOne Solutions services.

About PlusOne Solutions

PlusOne Solutions has been an industry leader in the risk management field by specializing in compliance programs that meet the complex challenges of geographically dispersed contractors, vendors, and employee networks. PlusOne Solutions protects companies from possible financial, legal, and reputational risks associated with contractor and vendor relationships while creating safer work environments. To learn more, visit https://www.PlusOneSolutions.net.