Can You Drug Test An Independent Contractor? The Pros And Cons Of Testing For Marijuana As Part Of Your Contractor Drug Testing Policy

Background Screening | July 19, 2021

As the legal status of marijuana changes from state to state, you may be left with questions. In this blog, we will address some common concerns around testing for marijuana, and answer the question: “can you drug test an independent contractor?”

As of June 2021, recreational marijuana has been legalized in 17 states and Washington, D.C., and is legal for medical use in 38 states for adults over the age of 21. Changes to laws regarding substances that were previously illegal can create some complications and raise a few questions about how to handle drug screening policies, especially for businesses that utilize contractors and vendor networks. This has given rise to questions like: Can you drug test an independent contractor? 

Keeping Your Workplace Safe

When crafting the policies that keep your workplace and customers safe, it’s important to consider the operational, legal, and reputational risks that need to be managed. There are many strategies to mitigate these risks, and a comprehensive contractor screening program should include:

• Criminal background checks
• Continuous criminal monitoring
• Drug testing
• Motor Vehicle Report searches
• Badging

Can You Drug Test an Independent Contractor?

The short answer to this question is yes. When contractor drug testing is required by your company, it needs to be clearly defined in your contracts with your contractor or vendor network.

What About Marijuana?

There are many arguments for and against testing for marijuana as part of your independent contractor drug testing policy. Although it has been legalized in many states, marijuana is still illegal at the federal level.

The Pros of Continued Testing for Marijuana

Not testing for marijuana will go against state laws in some areas. We recommend checking your state laws before making a decision on whether or not to include marijuana in your contractor drug testing.

Another “pro” for continued testing for marijuana is that it can protect your company from increased liability and potential exposure to litigation. If an accident or other undesirable behavior were to occur on a job site and it was determined to be influenced by marijuana use, the fact that marijuana is included in your drug testing policy can add a layer of protection from liability. If an incident were to occur and your company had previously administered negative drug test results from the individuals involved, it can provide a stronger legal defense as evidence that due diligence was conducted. 

Additionally, Marijuana continues to be the most commonly used drug, so failing to include it in your contractor drug testing policy may create an environment where drug users are attracted to the network because they know they will not be tested for it. Continued testing may proactively deter negative behaviors as well as the increase in accidents, reduction in productivity, and poor decision making that often comes with undetected marijuana use.

There is an additional risk of impact to the public image if consumers learn that you are no longer testing for marijuana, which continued testing can help your company avoid.

Drug testing may also proactively deter negative behaviors, as the individual is aware that the results may impact their status as a contractor or member of the vendor network.

The Cons Of Continued Testing For Marijuana

As marijuana’s legal status changes over time, there could be legal pushback over maintaining testing as part of your drug testing policy. There are already multiple states that have limited or prohibited testing for marijuana in specific situations, and there may come a time when it applies to your contractor or vendor networks as well. Additionally, removing marijuana testing will respect state laws and follow the trend that marijuana use is being decriminalized, so continued testing may appear to go against that line of thought.

Another drawback to continued testing is that testing does not always indicate present impairment. If the individual being tested has been legally using marijuana during off-hours, it could unfairly penalize them. Additionally, choosing not to test provides greater privacy and fairness to individuals using marijuana for medical reasons as they will not have to disclose this information.

Contractor Drug Testing Solutions

Depth and accuracy are important when it comes to contractor drug testing. Screenings from PlusOne Solutions include:

• Access to our network of over 15,000 collection facilities in the United States
• Testing that is conducted in laboratories certified by the U.S. Department of Health and Human Services
• Results that are reviewed by a certified Medical Review Officer
• Availability of standard 5 and 9-panel tests, or customized panels according to your company’s needs.

Marijuana is currently included in all PlusOne Solutions drug tests, but that does not automatically mean it is a barrier to participation in a service network. 

While you do not have to ask yourself “can you drug test an independent contractor?” any longer, there are certainly indicators that recreational marijuana use laws will continue to evolve over time. We will keep our clients informed as we monitor any changes and the effect they may have on your extended workforce. Contact PlusOne Solutions today, and see how our contractor compliance services can help your business.

Contents are provided for information purposes only and should not be construed as legal advice. Users are reminded to seek legal counsel with respect to their obligations and use of PlusOne Solutions services.

About PlusOne Solutions

PlusOne Solutions has been an industry leader in the risk management field by specializing in compliance programs that meet the complex challenges of geographically dispersed contractors, vendors, and employee networks. PlusOne Solutions protects companies from possible financial, legal, and reputational risks associated with contractor and vendor relationships while creating safer work environments. To learn more, visit https://www.PlusOneSolutions.net.