Philadelphia marijuana testing ban: what it means for job seekers

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A new Philadelphia law that bans marijuana testing during the hiring process is expected to improve job prospects for many, including people with state-sanctioned prescriptions.

However, several of the city’s largest employers are likely exempt from the ban, and stereotypes around marijuana use remain. On the other hand, while staff shortages affect almost every industry, a platform like LinkedIn for weed users is booming.

Introduced by council member Derek Green, the ban was passed by the council last April and went into effect on January 1. Some observers say it is likely to boost the local economy.

“This is a really sensible step for the region’s business sector,” Chris Goldstein, a regional NORML organizer, told Billy Penn. “Pre-employment screening has stopped millions of people from applying for everyday jobs, and in this hiring crisis, you really can’t do more than that to help.”

Pennsylvania legalized medical marijuana in 2016, and there were more than 340,000 licensed medical marijuana users in the state as of last May. Philadelphia decriminalized cannabis in 2018 and recently passed a city charter addition endorsing a statewide referendum on legalization.

Damian Jorden runs Phynally, a Philadelphia-based job search engine that lists opportunities at companies that don’t prescreen cannabis.

The job search platform registered about 2,000 users in December. It posts jobs nationally, in partnership with employers like Citizens Bank, Amazon, GoPuff and La Colombe. Phynally’s operation also has a medical side: it pre-qualifies Pennsylvania residents for medical marijuana prescriptions and connects them with card-issuing physicians in the state.

Jorden says he’s already seen an increase in interest since the new Philadelphia law went into effect. “More and more people are inquiring and asking how to work with us,” he said.

“These moral people are realizing that the stigma attached to cannabis use is not true,” Jorden said. “People think that cannabis users are excluded from the regular population. But they are not. They are the people.

In theory, all Philadelphia employers must comply with the law or face fines to be determined.

However, the law only addresses pre-employment cannabis testing. Employers can still randomly test employees once they are on staff, and the law provides a host of exemptions.

And pre-screening may still be required for safety-critical positions (think those that require the use of heavy machinery, work with children, or controlled substances); federally funded jobs; or openings linked to a union agreement that allows drug testing.

Some experts say the city’s definition of certain exempt positions could limit the number of businesses that must follow the new law.

Philadelphia’s law mirrors the language of the state’s Medical Marijuana Act, which prohibits the use of cannabis for safety-critical positions. Some of them are pretty clear: you can’t use marijuana and work on power lines or use a forklift, for example.

However, there is a sneaky clause that allows employers to define what a safety-sensitive position might be if it doesn’t fall under the obvious examples, which can leave the stigma around marijuana use worse.

The screening bans will not affect people applying for “any position in which the employee could have a significant impact on the health or safety of other employees or members of the public”.

Job seekers can file complaints with the Philadelphia Commission on Human Relations, which will determine whether or not the position is security-sensitive. According to city spokesman Kevin Lessard, the commission is still drafting the criteria that will be used to resolve these disputes and will not accept or process complaints filed until those criteria are finalized.

Ethan O’Shea, a litigator who specializes in cannabis and labor disputes, has seen many situations where a job applicant is turned down because an employer perceives the position to be security-sensitive. They can sue, he said, but “laws like these are too new to say who usually wins.”

Colorado provides legal precedent. In 2015, the Colorado Supreme Court ruled against a DISH Network employee who claimed he was wrongfully fired after testing positive for marijuana in a random drug test, despite being a quadriplegic at who the substance had been prescribed.

Are you afraid of finding yourself in one of these conflicts? O’Shea says employees need to look at job tasks objectively, which can be difficult since “most people believe they’re not impaired and can do the job they’re in.”

Despite the newfound interest in his business, Jorden, the founder of Phynally, worries that few people know about Philadelphia’s new rule. He saw little communication from the city or major employers about what the changes meant.

“Yes, the law has fallen. But how many people are actually paying attention?” he said. “If you wake up tomorrow and get certified for medical marijuana, there’s no email attached saying you can apply for almost any job you want.”

There’s also the potential for pushback from top employers accustomed to the traditional hiring cadence: scan the resume, interview the candidate, maybe call references, do a drug test, then hire.

“While some companies have spent the last 30 years doing pre-employment checks on every employee, they’re stuck in this weird routine,” said Goldstein, the legalization advocate. “It might take a while to get them out.”

Among some of Philadelphia’s largest employers, compliance is different at every company.

The University of Pennsylvania and its healthcare system are consistently ranked as the top provider of jobs in Philadelphia, with a workforce of more than 48,000 as of November 2020. The university would not comment on the law’s impact. about its hiring process, but sent over the most recent version of its workplace drug policy.

Currently, the university is a “drug-free workplace,” but does not explicitly state whether it screens applicants for cannabis faculty, programming, and administration positions. However, Penn tests applicants within 5 days of a job offer for positions that require them to drive a commercial vehicle.

Temple University and Temple University Health System, which round out Philadelphia’s 10 largest employers, have changed their drug testing policy to match the new law, according to spokesman Stephen Orbanek.

“We believe this change has already been seamlessly integrated,” he said.

Comcast and Aramark, two of Philadelphia’s other biggest employers, did not return requests for comment.

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