David Rodeck

Evaluating Drug Testing in the Changing Drug Landscape

The United States criminalized marijuana in 1937 and continues to do so today. But the landscape is changing, especially at the state level. According to Vox, marijuana is now legal for medical reasons in 32 states — and in 10 of these states, it’s legal for recreational use as well.

For companies figuring out how to manage their employer drug testing, this shift presents a tricky situation. Here’s what to consider.

The Origins of Workplace Drug Tests

Workplace drug testing first became popular 30 years ago, after the passing of the Drug-Free Workplace Act of 1988. According to the Substance Abuse and Mental Health Services Administration, this law made creating a drug-free workplace a requirement for any organization receiving a contract or grant from a federal government agency. Part of the law required implementing a drug-free awareness program for employees, disciplining employees with workplace drug convictions and maintaining “a drug-free workplace through an ongoing, good faith effort,” which could include drug testing.

While companies in the private sector were never required to perform drug tests, many followed the government’s example. The 1980s and ’90s saw the widespread introduction of pre-employment drug screenings and random testing for current employees — and, though the federal government ended its drug-free workplace program in 2010, most organizations have kept their drug testing policies in place until just recently.

Why Employers Drug Test

The financial impact of workplace drug abuse on attendance, productivity, safety and health care costs can be major. The Chicago Tribune recommends employers proactively tackle workplace drug use, since treatment and recovery instigated by employers is more effective and efficient — and because each recovered employee can save their company $3,200 a year. In some states, employers can also receive a discount on their workers’ compensation premiums by creating a drug-free workplace.

It’s also important to mention that, no matter how the tides of marijuana legalization turn, some workplaces will probably always drug test. For dangerous jobs in fields like construction, manufacturing and transportation, drug testing is a useful tool to reduce the risk of worksite accidents.

The Impact of Marijuana Legalization

The gray legal status of marijuana creates a confusing situation for employer drug testing. While it may be legal in medical or recreational forms (or both) at the state level, it’s still against the law at the federal level. Whether an employer can deny an applicant for marijuana use depends on the state.

In California, for example, where marijuana is fully legal, an employer can still reject a job applicant for a positive marijuana drug test, even if the candidate was using it for medical reasons. Employers should check their state’s laws as they develop their drug screening policies.

With the changing environment, the number of positive tests for marijuana reached an all-time high in 2017 and could increase even more as states further loosen restrictions. If the number of Americans using medical and recreational marijuana continues to grow, employers may have to weigh the potential effects of a smaller labor pool against those of hiring employees who use the drug.

Drug Testing in Today’s Environment

Some employers have stopped screening applicants for marijuana for just this reason, since by blocking applicants using a quasi-legal substance, they could be missing out on top talent during a tight labor market. In Colorado, where recreational marijuana is legal, the number of employers running drug tests fell from 77 percent in 2014 to 62 percent in 2017.

On the other hand, the workers’ compensation premium discounts companies get from drug testing could be reason enough to maintain the practice, especially in industries where accidents are more common. Research by Quest Diagnostics has also found that the prevalence of other drugs like methamphetamines and cocaine is on the rise, which could keep drug testing relevant. As a compromise, employers could also switch to drug tests that do not screen for marijuana or reserve testing for after an accident occurs or when an employee shows up to work visibly impaired.

As long as marijuana remains suspended in its current semilegal status, employers will need to make a judgment call about how to develop their drug screening policies. Employer drug tests can set the tone for workplace culture and impact recruitment and retention — the decision you make will have to balance federal regulations, local laws and your organization’s business needs.

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