When Rye Electric was founded in Orange County five years ago, it screened all prospective workers for drugs. If a test showed traces of cannabis, the applicant was nixed.
But the fast-growing construction company, which has a millennial-heavy workforce, has since adapted to the times. "We still do the tests," Chief Executive Chris Golden said, "but we choose to look the other way on marijuana."
Some 20 of the company's 150 workers were hired despite flunking a pre-employment screening for cannabis. "We let them know they can't do it on the job and we trust them not to," Golden said. "What are we going to say — you can't do something that's legal?"
Marijuana use remains illegal under federal law. But California was the first state to defy federal prohibition, legalizing medical cannabis in 1996. A 2016 ballot initiative opened the way to recreational pot.
With a growing economy and a low unemployment rate of 4.2 percent, many California companies face a shortage of qualified workers. Legal marijuana is making hiring even harder for those who take a strict stance on screening for drugs. So, increasingly, they're not testing — or ignoring some of the results.
"You watch what's going on in society. You look at recruiting, and you say, 'We've got to adjust,'" said Marc Cannon, a spokesman for AutoNation, the largest U.S. car retailer. The company, with 26,000 employees nationwide and 55 California outlets, stopped screening for cannabis three years ago.
"A lot of great candidates were failing the test," Cannon added. "There are people who drink and are great workers, but they don't do it on the job. Marijuana is just like alcohol."
New Jersey-based Quest Diagnostics, compiling data on 10 million tests a year, reports an increase in workers testing positive for pot, especially in states where recreational use is legal.
In 2010, 1.6 percent of Quest's urinalysis tests in California showed traces of tetrahydrocannabinol, or THC, marijuana's main active compound. By last year, the figure had risen to 2.5 percent. Some industries, including retail and warehousing, see higher rates.
"Our data suggests recreational use of marijuana is spilling into the workforce," said Barry Sample, senior director for science and technology.
Quest's numbers may vastly understate usage. "People using marijuana are less likely to apply to work for employers who have drug testing," Sample cautions.
Today, nine other states and the District of Columbia permit recreational marijuana for adults. Thirty-three allow medical cannabis. Some jurisdictions have adopted employment-specific laws. Thirteen states prohibit workplace discrimination against medi-pot patients. And earlier this month, the New York City Council moved to bar most businesses, nonprofits and city agencies, with some exceptions, from screening applicants for cannabis.
But California's Proposition 64, which legalized recreational marijuana, explicitly allowed public and private employers to enforce "policies prohibiting the use of marijuana by employees and prospective employees." And in a medical marijuana case, a 2008 state Supreme Court decision held that an employer may refuse to hire an applicant who tests positive for cannabis, even if it is legally prescribed for a disability.
Executives whose workers operate heavy machinery may feel they have little choice but to insist on marijuana screening.
Even when they don't pre-screen applicants, virtually all businesses require what employee handbooks call "a drug- and alcohol-free workplace" — workers aren't allowed to drink alcohol or take drugs on the job. If someone is suspected of being drunk or high, companies reserve the right to send them out for a test.
But cannabis represents a conundrum. In the case of alcohol, blood tests measure impairment levels. But THC can show up in urine and in saliva — which is where it is most reliably measured — when the user is no longer high.
"Marijuana can remain in the system and show up in a drug test for up to 45 days following use in regular users," the California Chamber of Commerce wrote members this year. "There is no method to determine if an individual is impaired at the time the drug is found in that individual's system or if it was consumed at an earlier time and the individual is no longer impaired."
But overall, workplace drug screening is on the wane. Spurred by the Reagan-era drug war, it peaked in the late 1990s, when surveys showed some 80 percent of companies nationwide had adopted the practice, up from about 20 percent a decade earlier. By the mid-2000s, the number was down to about half.
Public support for legalizing marijuana, meanwhile, grew to 66 percent last year, up from 12 percent in 1969, according to Gallup's annual polls.
Even before California legalized recreational pot, "a lot of employers were shying away from draconian drug testing," said San Diego attorney Ryan Nell. His seminars on the topic attracted more than 500 human resources professionals at a series of January conferences.
Nell recently advised two Los Angeles advertising agencies that they didn't need to pre-screen for cannabis.
"A lot of people are failing tests," he said. "Employers need to ask: Do we really care? Unless there are safety concerns — like someone driving a car — a lot of times they don't care."