By Bill Current, Founder of the Current Consulting Group
A drug testing policy is the backbone of an effective drug-free workplace program. It is the blueprint that, when properly written and faithfully followed, makes it possible for employers to accomplish their drug testing objectives.
Unfortunately, many employers will admit that their policy is either outdated or incomplete because it has been years since it was last updated. During that time state drug testing laws may have changed, they may have adopted a new testing methodology like oral fluid testing or, most likely, their policy makes no mention of marijuana, which can be a very costly mistake.
In 2024, more than 500 state bills have been considered at the state level that, if enacted, could have a direct impact on the drug testing programs of employers in those states. And many of those bills are related to marijuana, either expanding the legal availability of cannabis or expanding the rights of cannabis users, including anti-discrimination language that protects employees and job applicants.
In Current Consulting Group’s 2024 Drug Testing Industry Survey, co-sponsored by NDASA, when providers were asked: “What percentage of your clients have dropped marijuana from their drug test panel in the last 12 months?”, 78% said at least some had stopped testing for marijuana, including 17% who said more than 10% of their clients had made that ill-advised policy decision. Sadly, just over 43% said they do not believe these companies will ever reinstate testing for marijuana.
The decision to stop testing for marijuana is misguided at best. In the same survey, when asked: “Why have clients dropped marijuana from their drug-test panel”:
- 62% said they believe it makes it harder to hire people,
- 44% said it was to avoid the risk of a legal challenge from an applicant or employee, and
- 34% said it was because it’s not legal to test for marijuana in their state(s).
However, the truth is not including marijuana in a pre-employment drug screen just makes it easier to hire current drug users. And employing people who are more likely to use marijuana on their way to work or while on the job exposes employers to respond to hiring laws that can be used to hold employers legally liable for the bad acts their workers commit while under the influence of marijuana and functioning within the scope of their employment.
Furthermore, testing for marijuana is legal in every state, though conditions may apply in some states that have legalized pot. Even in New York, which has the most restrictive law when it comes to testing for marijuana, includes several exceptions that make it possible for employers to continue testing for marijuana under certain circumstances.
For employers who, rightfully so, are concerned about the safety and well-being of their workers in today’s marijuana-friendly environment, drug testing has never been more important. Over the course of the last three-plus decades, drug testing has proven to be a powerful deterrent to drug use by employees and an effective way of identifying people who need help. A well-written drug testing policy that reflects all applicable laws and regulations is critical to achieving a safe, marijuana-free workplace. As such, every policy should contain a dedicated marijuana section that includes at a minimum the following positions:
- The company respects the rights and privacy of its employees and will comply with all applicable state marijuana laws.
- Employees are prohibited from bringing marijuana into the workplace, using marijuana while on the job, including during breaks, and being at work under the influence of marijuana.
- Job applicants and employees will be tested for marijuana in accordance with each applicable state law.
- The company maintains the right to refuse to hire an applicant who tests positive for marijuana and to terminate an employee who tests positive in violation of the company’s policy when permitted by applicable laws.
To help employers make informed decisions about whether to test for marijuana, drug testing providers should do the following:
- Know the state marijuana laws that apply to your clients so you can help them understand how they can continue testing for marijuana while simultaneously complying with these laws.
- Demonstrate the return on investment of testing for marijuana and be prepared to explain the consequences companies face when choosing to discontinue testing for marijuana.
- Offer alternative drug testing methods such as lab-based and rapid-result oral fluid testing, and proctored drug tests to help meet clients’ needs when testing for marijuana.
- Offer assistance in updating their drug testing policies to reflect the most current applicable marijuana laws. At a minimum, companies should review their policy annually to ensure compliance with changing laws.
Building an Argument
To get the ball rolling as you build a convincing argument in favor of testing for marijuana, ask your clients to consider the following:
- Employees use marijuana on their way to work. In a survey of 500 employees who admitted to being marijuana users, 31% confessed that they use marijuana during their commute to the workplace. In CCG’s 2024 Drug Testing Industry Survey, 59% said they believe the decision to discontinue testing for marijuana encourages employees to consume marijuana before work.
- Employees use marijuana while on the job. Another survey of employees found that more than 1 in 5 said they have used marijuana recreationally in the workplace and during work hours. Further, nearly 5% admitted to using marijuana recreationally on a daily basis and more than 13% said they use marijuana at work more than once a month. In the survey of 500 marijuana-using employees cited above, 48% admitted to using pot at work, either during breaks or while actively working.
- Employees are under the influence of marijuana at work. While it’s true that a positive drug test does not prove that a person is impaired, it does prove that they have drugs in their system. Because a rapid oral fluid drug test, for example, detects the parent drug or the drug itself rather than a metabolite it is capable of detecting drugs within minutes after a person uses. This means a positive rapid oral fluid test result may indicate that the person is actually impaired on the job, especially when there was reasonable suspicion that prompted the test.
- Marijuana-impaired workers are unsafe in the workplace. Quest Diagnostics reported in 2023 that post-accident positive drug tests for marijuana had recently reached a 25-year high. “In 2022, post-accident marijuana positivity of urine drug tests in the general U.S. workforce was 7.3%, an increase of 9% compared to 6.7% in 2021. The new peak follows a steady increase in post-accident marijuana positivity every year from 2012 to 2022. In that 10-year time frame, post-accident marijuana positivity increased 204.2%.”
The report added: “These increases in post-accident marijuana positivity correspond with legalization of marijuana in certain states.”
Conclusion
Of course, there is a lot more information available to help employers make educated, smart business decisions regarding testing for marijuana.
Drug testing providers can help their clients understand that not knowing who the drug users are in their company is not a valid defense against legal action brought on when a marijuana-impaired employee is responsible for an accident that causes harm to others. A comprehensive drug testing program that includes marijuana may deter the drug user from being under the influence while on the job in the first place, but it also makes it possible for the employer to accurately claim that they made a good faith effort to maintain a drug-free workplace.
And, while it may be true that some employers don’t want to know who the marijuana users are in their company, that doesn’t excuse poor business decisions that can result in costly lawsuits and unsafe working conditions.
Bill Current founded the Current Consulting Group (CCG) in 1998 and it has become the #1 recognized brand in drug testing consulting. CCG specializes in helping drug testing providers grow their businesses, increase revenue, and improve profitability. CCG also works with employers to help them comply with all applicable state laws and federal regulations by developing customized, up-to-date drug testing policies.