Smoke pot? You might be hired anyhow

Employers shift drug-testing policies as marijuana laws relax

AutoNation does not weed out job candidates who test positive for marijuana.

The Fort Lauderdale-based auto retailer, which employs 26,000 people nationwide, is among the companies that have changed their hiring policies, overturning long-held corporate mandates.

That’s happening particularly in states where medical or recreational marijuana has become legal in recent years, surveys show. Some employers are ignoring a positive result. Others are not drug-testing job applicants at all.

Medical marijuana is legal in 29 states and Washington, D.C., and recreational marijuana is legal in nine states and Washington, D.C., with California being the most recent addition, according to national publications that have tracked legalization.

But the lack of concern about marijuana also is related to the tight labor market. Companies are seeking the best talent they can find in today’s robust economy, so they are catering to the needs of these in-demand workers, especially those in technology.

“We are looking to attract talent to our company, and putting this barrier in place, that’s not where society is at today,” said AutoNation CEO Mike Jackson, in an interview Thursday, after the company posted record earnings per share in its fourth quarter.

AutoNation has more than 300 dealerships, and many are in the states that have legalized medical or recreational marijuana: Florida, Texas, California, Nevada, Arizona, Colorado, Washington, Illinois, Minnesota, Maryland and New York.

“Look at our footprint and you can see it was the right decision,” said AutoNation spokesman Marc Cannon.

AutoNation discreetly made the decision about its hiring policy in 2016, as Florida and other states were legalizing medical marijuana. The nation’s largest auto retailer believes in staying on the cutting edge of employment practices, said Cannon, pointing to AutoNation’s addition of domestic benefits for employees in 2014 as another example.

“We’re still a drug-free work environment,” Cannon added, meaning there is no marijuana, or any drug or alcohol use, allowed at a work site. An employee who gets into an accident while driving for an AutoNation dealership, for example, would still be tested for controlled substances and could be fired.

Fort Lauderdale-based Citrix Systems, which has major operations both in Florida and California, said it does not require mandatory drug testing.

Even so, the global software company “promotes a drug- and alcohol-free workplace in order to provide a safe, healthy and secure work environment for all Citrix employees,” said Stacy St. Louis, a company spokeswoman.

South Florida tech recruiter Alex Funkhouser said the lack of drug testing is not unusual in the tech industry, especially when companies are competing for software developers. For some, marijuana is part of a cerebral culture that demands constant creativity, he said.

When recruiting for a client, he asks whether the applicant will be taking a drug test. “Some are very corporate — everybody gets a drug test. But more than half — when talking with a chief technology officer or someone in the tech department — say, ‘No, we don’t,’ ” said Funkhouser, of SherlockTalent in Miami Beach.

With medical marijuana being legal in Florida, the issue is more “openly discussed now,” Funkhouser said. “In the past, it was winks and nods.”

Some South Florida employers that operate in states where marijuana has been legalized in some form were reticent to discuss hiring policies. That may have to do with their particular industries, which may have greater worker-safety concerns or must comply with government regulations, experts say.

Also, marijuana remains remains illegal under federal law. U.S. Attorney General Jeff Sessions last month rescinded the passive Obama-era policy on enforcement of federal cannabis laws.

Connecticut-based United Technologies Corp. operates military jet-engine maker Pratt & Whitney near Jupiter and the new UTC Center for Intelligent Buildings in Palm Beach Gardens. It also has operations in Arizona and Illinois (where medical marijuana is legal) and in Massachusetts and California (where both medical and recreational marijuana are legal).

But when asked about UTC’s pre-employment drug testing policies, and whether these had changed in light of state laws, UTC had no comment, according to spokesman Bradford Dazen.

Boca Raton-based Office Depot, which has headquarters in Florida and stores and warehouses across the country, declined to comment for this report. Weston-based Ultimate Software, which also has employees in several states, didn’t reply to requests for comment.

But surveys show that employers in states that have legalized marijuana are gradually removing the substance from pre-employment drug testing panels, according to a report by the Society for Human Resource Management in Alexandria, Va.

Angelo Filippi, head of the employment law practice at Plantation-based Kelley Kronenberg, which specializes in marijuanarelated law, said Florida employers are under no legal obligation to accommodate workers who legally use marijuana for medical reasons.

But that could change: a Massachusetts court found in July 2017 that the language in its medical marijuana statute “implicitly recognizes that off-site use might be a reasonable accommodation.”

The case is focused on a Massachusetts-based worker who suffers from digestive issues because of Crohn’s disease. She maintains in the lawsuit that her employer had told her medicinal use of marijuana would not be a problem in hiring her. But after she tested positive, she was fired, according to court documents.

As a result of such court cases, Filippi said some employers are altering the language in their policies to give themselves “leeway to assess situations,” such as an employee who uses marijuana legally for medical purposes while off-duty.

More employers are more likely to change their hiring or workplace policies as the population of medical marijuana users grows in the state, said Seth Hyman, special projects director for Kelley Kronenberg who has been at the forefront of the issue in Florida. Recently, he was named to the Broward County Medical Marijuana Advisory Board, which makes recommendations to commissioners on providing medical marijuana services to qualified patients.

Hyman has a personal interest in the matter as well: his 12-year-old daughter, Rebecca, suffers from daily seizures because of a rare genetic disorder. A low-potency strain that is now available to her under Florida’s medical marijuana law has helped reduce those seizures, he said.

“Florida has seen the fastest growth of patients in the registry of any legal state,” Hyman said. As of Jan. 26, the Florida Medical Marijuana Use Registry had nearly 72,000 patients registered.

Hyman said he expects the state registry could reach a half-million, which would mean even more people being legally allowed to use marijuana for medical conditions — and many of them could be working for Florida companies.