Many employers around the country, desperate for workers, are quietly dropping marijuana from the drug tests they require of prospective employees. That's not the case so far in Louisiana, with its safety-sensitive job sectors adhering to federal regulations and their own standards.
In Louisiana, which does not allow recreational marijuana use but has a relatively tightly regulated medical marijuana program just starting up, drug testing continues to be a mainstay at the types of firms that have traditionally mandated it for employees, observers say.
“We have not seen in any large degree Louisiana employers … making significant adjustments to their drug-testing policies in reaction to the current trend in some states toward legalization,” said David Whitaker, a labor and employment attorney with Kean Miller in New Orleans.
Many maritime employers, a significant industry in Louisiana, have to adhere to federal rules requiring drug testing, Whitaker said. The federal Department of Transportation requires drug tests for many truck drivers and others in transport fields.
Ultimately, “safety-sensitive” occupations will likely continue drug testing regardless of its legality, he said.
Where the practice might die down in the future, he said, is at companies that have used drug testing as a general vetting tool to determine if a would-be employee broke the law. Still, most marijuana use remains illegal in the Bayou State.
“The sort of companies that have traditionally drug tested have not altered their policies in Louisiana,” said Kevin Caldwell, head of the marijuana advocacy group CommonSense NOLA. “However, we do have to remember there are a lot of companies that do not drug test. It is very expensive and in general can be easily worked around.”
Marijuana testing — a fixture at large American employers for at least 30 years — excludes too many potential workers, other experts say, especially at a time when filling jobs is more challenging than it's been in nearly two decades nationally.
"I have heard from lots of clients things like, 'I can't staff the third shift and test for marijuana,' " said Michael Clarkson, of Boston, head of the drug testing practice at law firm Ogletree Deakins. "It has come out of nowhere."
Though still in its early stages elsewhere in the U.S., the shift away from marijuana testing appears likely to accelerate. More states are legalizing cannabis for recreational use. Michigan could become the 10th state to do so in November. Missouri appears on track to become the 30th state to allow medical pot use.
And medical marijuana users in Massachusetts, Connecticut and Rhode Island have won lawsuits in the past year against companies that rescinded job offers or fired workers because of positive tests for cannabis. Before last year, courts had always ruled in favor of employers.
Until Louisiana adopts at least a decriminalization process — a proposal that failed to pass through the Legislature this year — Caldwell expects the existing drug-testing landscape to continue.
Firms like Core Occupational Medicine, which administers drug testing for employers, haven’t seen a decline in demand, said project manager Jim Moffatt, of Baton Rouge. Even in states that have legalized recreational marijuana, state laws almost never prohibit companies from barring employees from work if they use the drug, which is still federally illegal.
“All the petrochemical, chemical industry, paper mills, the big employers (in Louisiana), they still all include it in their policies,” Moffatt said. “The federal government still includes it in their policies.”
At the Port of Greater Baton Rouge, where companies have long struggled to find and keep qualified workers, the issues brought about by the tight labor pool is nothing new, said Jay Hardman, port director.
But the companies hiring workers at the port aren’t shying away from drug testing, even if it makes the task of finding qualified workers harder.
“They say they have a hard time finding people who can pass a drug test,” Hardman said. “It's a chronic problem. It existed long before this tight labor pool we've got now.”
President Donald Trump's administration also may be softening its resistance to legal marijuana. Labor Secretary Alexander Acosta suggested at a congressional hearing last month that employers should take a "step back" on drug testing.
"We have all these Americans that are looking to work," Acosta said. "Are we aligning our … drug testing policies with what's right for the workforce?"
Mayors from Denver, Seattle, Portland, San Francisco, Los Angeles, Las Vegas and West Sacramento — all in marijuana-friendly states — recently sponsored a resolution at the U.S. Conference of Mayors in Boston that asked the U.S. government to remove cannabis from a list of illegal drugs, among other things.
There is no definitive data on how many companies conduct drug tests, though the Society for Human Resource Management found in a survey that 57 percent do so. Nor is there any recent data on how many have dropped marijuana from mandatory drug testing.
But interviews nationally with hiring executives, employment lawyers and agencies that help employers fill jobs indicate that dropping marijuana testing is among the steps more companies are taking to expand their pool of applicants to fill a near-record level of openings.
Businesses are hiring more people without high school diplomas, for example, to the point where the unemployment rate for non-high school graduates has sunk more than a full percentage point in the past year to 5.5 percent. That's the steepest such drop for any educational group over that time.
Excluding marijuana from testing marks the first major shift in workplace drug policies since employers began regularly screening applicants in the late 1980s. They did so after a federal law required that government contractors maintain drug-free workplaces. Many private businesses adopted their own mandatory drug testing of applicants.
Most businesses that have dropped marijuana tests continue to screen for cocaine, opiates, heroin and other drugs. But James Reidy, an employment lawyer in New Hampshire, said companies are thinking harder about the types of jobs that should realistically require marijuana tests. If a manufacturing worker, for instance, isn't driving a forklift or operating industrial machinery, employers may deem a marijuana test unnecessary.
"Employers are saying, 'We have a thin labor pool,' "Reidy said. " 'So are we going to test and exclude a whole group of people? Or can we assume some risks, as long as they're not impaired at work?' "
Yet many companies are reluctant to acknowledge publicly that they've dropped marijuana testing.
"This is going to become the new don't ask, don't tell," Reidy said.
In most states that have legalized marijuana, like Colorado, businesses can still, if they wish, fire workers who test positive. On the other hand, Maine, which also legalized the drug, became the first state to bar companies from firing or refusing to hire someone for using marijuana outside work.
Companies in labor-intensive industries — hoteliers and home health care providers and employers with many warehouse and assembly jobs — are most likely to drop marijuana testing. By contrast, businesses that contract with the government, are in regulated industries, like air travel, or have safety concerns involving machinery are continuing marijuana tests, employment lawyers say. Federal regulations require the testing of pilots, train operators and other key transportation workers.
Dropping marijuana testing is more common among employers in the nine states, along with the District of Columbia, that have legalized pot for recreational use.
In Denver, in a state with just 3 percent unemployment, 10 percent of employers that screen for drugs had dropped marijuana as of 2016, according to a survey by the Employers Council, which provides corporate legal and human resources services.
"It's because unemployment is virtually nonexistent" in Colorado, said Curtis Graves, a lawyer at the council. "People cannot afford to take a hard line against off-duty marijuana usage if they want to hire."
That's particularly true in Colorado's resort areas, where hotels and ski lifts are heavily staffed with young workers, Graves said: "They can lose their jobs and walk across the street and get another one."
FPI, a property-management firm in San Francisco that employs 2,900 around the country, from leasing managers to groundskeepers, has dozens of jobs listed on online boards. Its ads say applicants must pass a "full background check and drug screening."
But it adds, "As it relates to marijuana use, FPI will consider any applicable state law when dispositioning test results."
FPI didn't respond to requests for comment, which isn't unusual given that companies that have dropped marijuana tests aren't exactly billboarding their decisions. Most still seek to maintain drug-free workplaces and still test for harder drugs.
"They're pretty hush-hush about it," Graves said.
The stigma surrounding marijuana use is eroding, compounding pressure on employers to stop testing. Sixty-four percent of Americans support legalizing pot, a Gallup poll found, the highest percentage in a half-century of surveys.
AutoNation, which operates dealerships in 17 states, is one of the few that have gone public. The company stopped testing for marijuana about a year ago. Marc Cannon, a company spokesman, said it did so mostly in response to evolving public attitudes. But it also feared losing prospective employees.
"The labor market has tightened up," Cannon said.
AutoNation heard from other business leaders, Cannon said. They said things like, "'We're doing the same thing; we just didn't want to share it publicly.'"