Pubdate: Wed, 02 May 2018
Source: Boston Globe (MA)
Copyright: 2018 Globe Newspaper Company
Author: Christopher Rugaber


WASHINGTON - FPI Management, a property company in California, wants
to hire dozens of people. Factories from New Hampshire to Michigan
need workers. Hotels in Las Vegas are desperate to fill jobs.

Those employers and many others are quietly taking what once would
have been a radical step: They're dropping marijuana from the drug
tests they require of prospective employees. Marijuana testing - a
fixture at large American employers for at least 30 years - excludes
too many potential workers, experts say, at a time when filling jobs
is more challenging than it's been in nearly two decades.

''It has come out of nowhere,'' said Michael Clarkson, head of the
drug testing practice at Ogletree Deakins, a law firm. ''I have heard
from lots of clients things like, 'I can't staff the third shift and
test for marijuana.'''

Though still in its early stages, 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rescinded job offers or fired workers because of positive tests for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.

The Trump 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?''

There is no definitive data on how many companies conduct drug tests,
though the Society of Human Resources 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 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. On Friday, the government is expected to report
another robust jobs report for April.

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, says 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

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 or that are in regulated industries,
like air travel, or that 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. An additional 20 states allow marijuana for
medical use only. But historically low unemployment is driving change
even where pot remains illegal.

After the Drug-Free Workplace Act was enacted in 1988, amid concerns
about cocaine use, drug testing spread to most large companies. All
Fortune 500 companies now engage in some form of drug testing,
according to Barry Sample, a senior director at Quest Diagnostics, one
of the largest testing firms.

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 non-existent'' 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.

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.'''

Relaxed attitudes among employers are spreading from states where
recreational marijuana is legal to those where it's lawful only for
medical use, such as Michigan and New Hampshire.

Janis Petrini, who owns an Express Employment staffing agency in Grand
Rapids, Michigan, says that with the area's unemployment rate below 3
percent, employers are growing desperate. Some are willing to ignore
the results of drug tests performed by Express, which still screens
for marijuana and won't place workers who test positive.

''We have had companies say to us, 'We don't worry about that as much
as we used to,''' Petrini said. ''We say, 'OK, well, we are still
following our standards.' ''

One of Reidy's clients, a manufacturer in New Hampshire, has dropped
marijuana testing because it draws some workers from neighboring
Massachusetts and Maine, which have legalized pot for recreational
use. Another client, which runs assisted living facilities from
Florida to Maine, has stopped testing its housekeeping and food
service workers for marijuana.

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.

In Las Vegas, where recreational use is legal, marijuana dispensaries
''look almost like Apple stores,'' said Thoran Towler, CEO of the
Nevada Association of Employers.

Many high-tech companies have been moving from California to Nevada to
escape California's high costs, and they're seeking workers. Towler
says the most common question from his 400 member executives is,
''Where do I find employees?''

He estimates that roughly one-tenth of his group's members have
stopped testing for marijuana out of frustration.

''They say, 'I have to get people on the casino floor or make the
beds, and I can't worry about what they're doing in their spare
time,''' Towler said.
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MAP posted-by: Matt