Ask HR: Applicant failed drug test. Can I still hire them?

Dear HR:

We just offered a position to a fantastic applicant with great experience and references. The problem is—they failed the pre-employment drug test and admitted that they had some “recreational marijuana” brownies last week. The applicant claims that they didn’t think it would be an issue since pot is legal in Oregon now. Can I still hire them?


HR Answer:

The answer is maybe.

Marijuana still remains illegal under federal law, so employers do not have to make exceptions to their drug-free workplace policies. There may also be industry-specific legal requirements or safety concerns that should be considered prior to making exceptions.

Legislative Update: Employees and the use of Recreational Marijuana

If an employer chooses to make an exception, best practices include updating your drug free work place policies or entering into a Last Chance Agreement (LCA) with the employee. An LCA is a formal agreement between the employer and employee that allows the employee remains employed. The employee acknowledges they have violated the policy and agrees that further misconduct, meaning if they test positive again, then they will be fired. An LCA is literally the employee’s “last chance” to remain employed. Employee use of marijuana is an ever-evolving legal consideration – let Cardinal Services keep you up-to-date on the latest laws and policies on workplace drug policies.