Worker shortage forcing employers to reconsider marijuana testing

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Tammy Turner and Kerry Buffington, the co-owners of Kapstone Employment Services in Detroit, had to have a conversation with a client recently that they're not used to having.

"We actually had to go to them and say, 'Listen, this is not being consistent with the labor market now. Marijuana is legal and you're passing up on good talent,' " Turner remembers telling the client.

Turner said they were interviewing candidates for open positions at this company, and staff at their employment agency ask candidates whether they can pass a drug test as a part of their routine questions. She said, more often than not, candidates are honest and will say whether they would test positive for marijuana.

About a month later, that company decided to no longer test new hires for marijuana, joining a growing number of companies in Michigan that have dropped the requirement in recent years.

The movement to relax drug testing policies goes back to 2008, when medical marijuana was legalized in Michigan, employment lawyers and staffing firm executives say. It gained momentum in 2018, when recreational marijuana was legalized, and in recent months as many companies struggle to find workers.

Notably, one of the largest private employers in the U.S., Amazon.com Inc., said in June it would no longer test most job applicants for marijuana. The company said instead it treats cannabis use the same as alcohol use, and will continue to do impairment checks on the job.

But few companies are willing to publicize their drug testing policies and there's little data tracking of which companies choose to no longer test.

Some companies are still required to test under federal rules, under which marijuana is still considered illegal.

John Birmingham, a partner at the law firm Foley & Lardner LLP, said he has seen preliminary results of national surveys, in which about half of employers are considering changing their drug screening policies. Anecdotally, he said he has some clients who have dropped the marijuana testing requirement in recent years.

A few other companies, especially automotive suppliers, have made decisions about their testing policies based on hiring struggles that have emerged over the last few months.

"It's such a crushing difficulty to get enough people working right now that it has motivated my clients to eliminate [marijuana] as part of the testing requirement," Birmingham said.

As Michigan's economy has reopened after restrictions to reduce the spread of covid-19 for most of last year and the early part of 2021, businesses have had difficulties finding workers. Most employers attribute it to a combination of more generous unemployment benefits, a lack of affordable and accessible child care options and lingering fears over the virus.

Staffing firm executives say dropping testing requirements for marijuana for new hires is one way to eliminate a hurdle in both attracting and hiring workers.

Keilon Ratliff is the head of Troy-based Kelly's automotive and oil, gas and energy staffing business, and is involved in the company's EquityWork initiative, which aims to knock down barriers that disqualify people from employment.

Ratliff said workers are more cautious and pickier about the jobs they'll take.

"They're in the driver's seat," he said. "Now, companies are saying, 'OK, if we want to get this talent, we have to do everything we can do to procure this talent.'"

That has resulted in employers looking at increasing wages to compete in the market and eliminating barriers to employment, such as drug screenings.

Ratliff said he recently was talking with a customer that, as a part of their onboarding process, had new employees take a hair follicle drug test. This employer said they were having difficulties bringing on new hires, not necessarily because they failed the drug test, but because the new employees weren't even showing up to take the test.

"We pointed out that it's not necessarily because they have a drug problem. It's maybe because they don't want to go through the hassle because they don't have to," he said.

After some discussion, the company decided to eliminate the drug screening for new hires and test if there is an incident at work.

But safety is still a concern.

Glenn Stevens Jr., executive director of the Detroit Regional Chamber's MICHauto program, which advocates for the state's automotive and mobility companies, said many companies are trying to get creative with hiring because they're having trouble filling their shifts.

"But you're not going to do anything to compromise safety," Stevens said. "You're walking a fine line because you want to make sure your employees don't have any issues with substance abuse."

Stevens puts automotive companies into three buckets: There are those that continue to test for all substances. There are also a substantial number of companies that aren't testing for marijuana but they expect employees to come to work sober, he said. And finally, there are those that are testing new hires for marijuana but are looking to quickly eliminate the policy or are in the process of doing so because of the labor market situation.

"Make no mistake about it, these changes are driven by the tight labor market," Stevens said. "But people and companies are evolving, and as long as safety and quality standards are not compromised, they're going to want to work with people who want to work."

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