Employer Branding Talent Acquisition

Marijuana: Can Recruiters Screen Candidates for a Now Legal Drug?

Another year has come and gone. It’s 2014, and the world is changing. Some changes are good, and some are bad, and some are just dependent upon whom you ask.

I can tell you one change that’s been making front-page news in the U.S. lately: legalized marijuana in Colorado. As of January 1st 2014, Colorado residents 21 years of age or older can legally purchase and consume limited amounts of cannabis. This poses a unique and troubling problem for recruiters and employers – how do you drug screen prospective employees for a substance that is now legal?

Despite the passage of Amendment 64 legalizing marijuana, employers still have full authority to impose any drug prohibitions they wish. While the drug’s proponents may be enjoying its new-found legality, they may also be enjoying a false sense of security in thinking the legality will protect their employment. On the contrary, buried in the fine print of the amendment is the verbiage stating that the law does not “affect the ability of employers to have policies restricting the use of marijuana by employees.

It comes as no surprise that employers can fire an employee for using the drug at work, or working while under the influence – this is no different than alcohol. The confusion lies in the fact that employers can fire employees for legally using in the privacy of their own homes, even if they have a prescription for medical use. Traces of marijuana can remain in the body for over 30 days. For those employers who have adopted a zero tolerance policy in the workplace, they have every right to continue drug screening and firing users.


So what about the correlation to cigarette smoking? Many employers offer a smoke-free work environment to protect the safety and health of their employees and customers. Employees who violate a smoking ban by smoking in restricted areas can be fired – that’s a given. However, employees who smoke away from the office make up a gray area. In some states, employers are allowed to test employees and job applicants for nicotine, just as they might for drugs, and terminate or deny employment to those who test positive. Federal law allows this, as smokers are not considered a protected class.

In some states, however, smokers’ rights are protected by the state, even if they’re not protected by the federal government. In those states, employers are not allowed to take into account whether or not a person smokes in the privacy of his or her own home. Using this information as hiring criteria is forbidden, as is terminating an employee for smoking on his or her own time. Interestingly enough, Colorado is one of these states. So why wouldn’t this protection extend to the now-legal practice of marijuana use?

It’s still illegal:

The answer is fairly simple – despite the amendment legalizing its use in certain individual states, marijuana is still illegal under U.S. federal law. This gives employers the right to maintain a drug-free workplace, regardless of where or for what reason the employee uses. In 2011, a quadriplegic employee of DISH Network sued the company after being terminated for testing positive for marijuana. The employee admitted to using the drug legally by prescription to control muscle spasms, but stated he was never under the influence while at work. The Colorado Court of Appeals upheld the firing, stating that because of the drug’s illegal status under federal law, employers are not bound by Colorado’s Lawful Off-Duty Activities Statute, which otherwise prevents employers from interfering in employees’ activities outside of work. According to Curtis Graves, an attorney for the Mountain States Employers Council, if a company has a drug policy in place and an employee fails a drug test, “employers can take whatever action they deem to be prudent.


While the law is clear, confusion and frustration still exist. Contradicting state and federal laws can result in employees losing their jobs for doing something in the privacy of their own homes that the state deems perfectly legal. According to Mason Tvert, co-director of the Amendment 64 campaign, a double-standard exists in that employers would almost never sanction a worker for off-duty alcohol use unless it affects his or her job performance, yet this is not the case with marijuana use. Tvert adds, “It’s really irrational to punish employees for engaging in lawful activities outside of the workplace.

The legalization of recreational drugs is a new area for most employers. Just like the repeal of prohibition in the U.S. in 1933, legalization brings new questions to light, and there is much territory to be covered before smooth waters can be navigated in the journey to employers’ and recreational drug users’ coexistence. While most of these challenges have yet to emerge, they could cause an additional hurdle in the recruiting process. I’d be interested to know how many veteran recruiters have already encountered such hurdles…

READ MORE: 10 Reasons Why You Need to Screen Applicants When Recruiting

By John Feldmann

John Feldmann is a Senior Communications Specialist for Insperity in Houston, TX. With over a decade of marketing and employment branding experience in the recruiting and human resources industries, John specializes in employment- and HR-related content development for a variety of media types in order to communicate Insperity's brand to both business professionals and job seekers. Follow John on X @John_Feldmann.