EMPLOYERS

Before last year, courts had always ruled in favor of employers.

The Trump administration also might 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 ... drugtesting policies with what’s right for the workforce?”

There is no definitive data on how many companies conduct drug tests, although the Society of Human Resources Management found in a survey that 57 percent do so. Nor is there 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 nearrecord level of openings.

Businesses are hiring more

people without high school diplomas, for example, to the point where the unemployment rate among those who do not have a high school diploma 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 in that period. On Friday, the government is expected to report another robust jobs report, this one about April.

Excluding marijuana from testing is 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 mandatory drug testing of applicants.

Most businesses that have dropped marijuana tests continue to screen for cocaine, opioids, 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 might 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 have 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, such as Colorado, businesses still are allowed to 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, such as 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.