With medical marijuana now legal in three-fourths of all states, some long-term care employers say that pre-employment testing is weeding out otherwise ideal job candidates.
They’re reconsidering whether to test and how to use the results when hiring for non-caregiving positions, according to attorneys who spoke on the issue at the LeadingAge Leadership Summit earlier this week.
“I think it’s an important question in the tight labor market we’re in, particularly in the industry that you are in,” said Dan Burke, an employment law attorney with Graydon, Head & Ritchey. “In the last month, I’ve had several conversations with clients who said, ‘Dan, I can’t continue to do pre-employment drug testing on marijuana and hire anyone.’”
More employers are reconsidering their stance on the topic in more places, especially as new states adopt friendlier laws.
Today, cannabidiol, or CBD, products are legal and sold over-the-counter in all states. Those products sometimes can include THC, marijuana’s main active ingredient, which could lead to a positive drug test in high enough amounts. Meanwhile, 19 states and the District of Columbia have legalized medical marijuana, and another 19 allow use for medical and recreational purposes.
“You’ll see more of that in the next four or five years,” said Cory Kallheim, vice president of legal affairs and social accountability for LeadingAge. “If it’s legal for not only medical but also recreation (use), what are you going to do with your employees at that point? This is the trend. …This is not going away.”
He noted that states where recreational cannabis was legal earlier already have relaxed employment drug screening successfully.
But long-term care providers must proceed with caution, especially in the skilled nursing sector, which relies heavily on federal funding. Marijuana use remains illegal at the national level, and despite the low risk of investigation now, that policy could pivot again under a new administration.
“That’s the big conflict when you deal with your residents and a little on the employee side as well,” Kallheim said. “That’s the 800-pound gorilla, the gigantic elephant, whatever you want to call it, that’s the one that’s the tricky part.”
A JAMA Internal Medicine study published in 2020 found the number of older adults using cannabis had increased 75% in the late 2010s, and that led to some long-term care providers adopting policies that govern the drug’s use (or not) on their campuses.
Now, given a historic workforce shortage that is affecting kitchen and environmental services hiring as much as nurse recruiting, operators are examining whether they can loosen standards for potential employees, too.
Employers can prohibit ongoing drug use as a condition of employment and should maintain post-accident testing, reasonable suspicion testing for employees and post-accident or random testing of current employees as dictated by provider policies.
“You’re screening out not somebody that’s using marijuana in the workplace, but somebody that has some kind of history of recreational use of marjuana,” he said. “They’d be in places like your back-office functions, IT, accounting, dining, maintenance, housekeeping. I’m probably not talking about direct care employees.”
Burke said those interested in relaxing pre-employment marijuana screening also must consider whether they will still do pre-employment testing to look for use of other drugs.
“It’s hard to just knock out one drug,” he warned. “You don’t want to send the message that, ‘We’re OK with pot-smokers,’ whether that’s intended or not.”
He also advised providers to consider state law regarding marijuana legality, state limitations on aging service providers and their requirement to drug test, and details of their insurance coverage — especially worker’s compensation plans — that might require testing as part of maintaining a drug-free workplace.