As attitudes concerning cannabis have rapidly changed over the last few years, many employers have changed or entirely dropped their testing for marijuana. However, employers that have continued to retain their drug testing policies may be faced with a struggle to comply with an increasing number of state and local laws permitting the substance as more workers test positive.
Despite the use of marijuana still being illegal on a federal level, 38 states have legalized the substance for medical use, and 18 have legalized it for recreational use. This has, in turn, led to an increasing number of states introducing workplace protections.
According to an analysis of more than 11 million results collected between January and December of 2021 from Quest Diagnostics, drug screening provider positivity rates had climbed to their highest level since 2001 and had risen more than 30% since 2010-2012. In fact, the study indicates that in one year alone, between 2020 to 2021, the positivity rate had climbed by 8.3%, reaching the highest ever reported by Quest Diagnostic’s Drug Testing Index.
Unfortunately, the increased positivity rates extended to post-accident testing as well, according to this study, with an increase of 26% between 2017 and 2021. Despite these increases in positivity, many employers may still be hesitant to enforce or begin testing policies for THC, the psychoactive component of marijuana, due to widespread labor shortages.
However, employers cannot afford to hide their heads in the sand concerning this important issue. Workplaces must choose whether or not to keep or eliminate their drug-testing programs, and there are several issues to consider. In favor of keeping their drug testing programs are increased attendance and productivity, reduced costs of health insurance, greater workplace safety, reduced liability, and decreased risk of reputational damage.
However, there are potential concerns to keep in mind as well. These include how it may affect employee privacy, potential accusations of discrimination against those with disabilities, increased difficulty with recruitment, the possibility of conflict with state and local laws, and mistakes in testing. With the increasing number of laws providing marijuana users with workplace protections, a positive test alone may not be enough to take adverse employment actions in many cases.
Several states and localities now provide marijuana users, particularly medical marijuana users, with employment protections. Learn More
So, before making any decisions based on a positive test, an employer would need to consider any laws that may be implicated.
Though an increasing number of states and localities have workplace protections for marijuana users, which makes the issue more complicated, most have a carve-out for safety-sensitive positions. For roles that may create a significant safety issue, such as those involving the use of heavy machinery, an employer may choose to retain policies prohibiting drug use.
However, applicable laws change by state and locality, and it is important to check for any applicable regulations in a particular location. This is particularly important for multistate organizations, which may need to adapt their policies for different locations.
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