With weed legalization in neighboring states, Wisconsin employers are rethinking marijuana policies

Sarah Hauer | Milwaukee Journal Sentinel

The laws about marijuana in Wisconsin aren't changing. But recent legalization of recreational marijuana in neighboring states and shifting societal norms are causing employers to rethink how to treat cannabis use.

Calls to MRA's human resources hotline about workplace drug testing increased in recent months. Employers are asking just how exactly the changing tides will affect them.

"It's still a little hazy," said Michael Hyatt, human resources government affairs director at MRA. Pewaukee-based MRA is one of the largest employer associations in the country, with more than 4,000 member organizations.

Legal sales of recreational weed began Dec. 1 in Michigan. In Illinois, legal marijuana sales start on the first of the year. The legislation allows anyone over 21 with valid state ID to purchase marijuana from licensed dealers.

Michigan and Illinois are the 10th and 11th states to allow recreational marijuana.

Even with the legal sale of marijuana, landowners can ban cannabis use and employers can prohibit employees from having THC (the psychoactive agent) in their systems.

Many companies require pre-employment drug testing. Workplaces that require drug testing for controlled substances often involve safety measures, such as manufacturers where employees use heavy machinery. Federal Department of Transportation rules that apply to trucking, mass transit and airline workers, among others, require screening for drug and alcohol use for people in safety-sensitive jobs.

Employers, especially those that aren't subject to federal regulations, are wondering if their policies need to be updated.

With low-unemployment, some companies are starting to view drug testing as a hurdle in the hiring process, said Erik Eisenmann, a partner at Husch Blackwell in Milwaukee.

Within the last three to five years, Eisenmann said, he's started hearing employers addressing drug testing in particular.

"We have a pre-employment drug test, but down the street, they don't. I'm losing out on all these candidates who are using marijuana recreationally on the weekends who would otherwise have all the skills," Eisenmann said companies say to him.

He has clients taking both paths — sticking with testing for marijuana because it's prohibited in Wisconsin and removing the drug from their screen.

The laboratories that carry out employer-based drug testing, such as Quest Diagnostics, do not see evidence that people are abandoning the practice, said Quest Diagnostics Director of Science and Technology Barry Sample.

"We're not seeing people leaving us and saying 'we're stopping drug testing,'" Sample said.

What he does see is a slight change in employer attitudes toward testing for marijuana in states where the drug is legal for recreational use. The rate at which marijuana is included in employer drug tests has decreased by about 1% from 2015 to 2018 in states where marijuana is illegal or approved only for medical use, he said.

A larger but still modest decline is seen in states where recreational use is legal. There, Quest Diagnostics saw a nearly 4% decline in employers including marijuana. In 2018, just under 95% of employers working with Quest Diagnostics for drug testing included marijuana.

"When you are in a labor-intensive industry, I have not found employers willing to remove marijuana if they don't have to," said Selena Castle, a human resources business partner with MRA.

The status quo at Wisconsin employers will likely hold as long as weed is illegal in the state.

"I don't think it's going to happen tomorrow, but at some point recreational marijuana will be legal (in Wisconsin)," said Hyatt, from MRA.

Sarah Hauer can be reached at shauer@journalsentinel.com or on Instagram @HauerSarah and Twitter @SarahHauer. Subscribe to her weekly newsletter Be MKE at jsonline.com/bemke.