When faced with constantly evolving marijuana laws, employers – especially those that hire nationwide – can find themselves in a daunting maze of decisions. Do you crack down harder on marijuana use to keep it out of your facility, or do you chuck your marijuana testing program out completely?
Obviously, the right answer is somewhere in the middle, and it depends on your industry and your needs. EBI continues our three-part series examining what employers need to know about the evolving world of legal marijuana. In Part One, we discussed how employers in different states are responding to changing marijuana laws.
This time, we explore why some major companies are changing their drug testing programs and policies, and how the issue of impairment versus intoxication is so difficult to nail down.
Bill Current, president of Current Consulting Group, joins us to tackle the questions employers are asking about testing for marijuana in this new environment of legalization. Current is the author of ten books on substance-related issues.
EBI: Amazon recently announced it will no longer screen for marijuana for unregulated positions. How does this move affect their workforce? Their customers? Other employers?
Current: My prediction is that many, if not most, companies that decide to discontinue or limit testing for marijuana will reinstate it in the coming years, probably sooner rather than later. Amazon’s announcement made clear that it will continue testing employees for marijuana as well as applicants for DOT-covered positions. But the bottom line is always the bottom line in business. Employees who are under the influence of marijuana while on the job are more likely than their non-using co-workers to cause an accident, file a workers’ compensation claim, or over-utilize their healthcare benefits. Marijuana-impaired workers cost more money to employ, and they expose their employers to increased liability through negligent hiring laws. We know that marijuana use is up and positive drug test results for marijuana are up, especially in states that have legalized recreational marijuana. In time, companies that take a lax approach to marijuana use by employees will see that they are bearing the brunt of the costs associated with those trends and do what businesses always do, make decisions that benefit their bottom line, which in this case will be to reinstate all types of testing for marijuana.
EBI: Is there anything you wish employers would know – or think about – before making such dramatic changes to their drug testing policy?
Current: Sometimes people react to things they hear on the news without doing research to verify those claims or investigate how or if those things even apply to them. In the case of marijuana legalization, employers still have rights and that includes drug testing for marijuana and holding employees accountable for violating a company policy that prohibits workers from bringing marijuana to work, using marijuana while on the job, or being at work while impaired by marijuana. Employers should also understand that just because a state legalizes marijuana doesn’t mean it has also suspended other laws that hold employers responsible for the actions of their employees, which in the case of marijuana-impaired workers, could mean costly accidents that result in expensive lawsuits. Legal marijuana is just as dangerous as black-market marijuana, the only difference is buyers of legal marijuana must pay taxes on their purchases.
EBI: One of the most difficult pieces of the puzzle when it comes to marijuana is the issue of impairment. Are we any closer to figuring out a way to measure how high someone is – such as a Blood Alcohol Concentration for alcohol? If we do get to that point, how will things change for employers?
Current: To answer this question requires us to understand that impairment and intoxication are two very different things. Intoxication from marijuana use, the “high” that users describe, may only last about 30 minutes, but cognitive and/or psychomotor impairment can endure for up to several hours after the high wears off. Marijuana-induced impairment is affected by many factors, including how often the person uses marijuana, the potency of the THC in the marijuana they use, how the marijuana is consumed (e.g., smoking a joint vs. eating marijuana-laced brownies), and what tasks the person is being asked to perform (remembering instructions vs. driving a delivery van).
While a positive drug test result for marijuana or any other drug does not prove, either scientifically or legally, that someone was impaired at the time of the drug test, it does prove they had been using drugs and had drugs in their system while on the job, which is a violation of most company policies. A positive test result combined with documented aberrant behavior (unexcused absenteeism, excessive tardiness, poor job performance, or increased accidents) strengthens the legal defensibility of an employer’s decision to take adverse employment action.
The pro-marijuana people want us to focus on intoxication rather than impairment, but in the future, the focus will be on fitness-for-duty. Today there are already a few effective fitness-for-duty evaluation systems available to help determine if someone is fit to drive a car, operate a forklift, or perform any other safety-sensitive function. The best of these tests are “cause-agnostic” and focus on whether someone is fit-for-duty rather than intoxicated or impaired from drug use. Fitness-for-duty exams combined with oral fluid testing, with its unique ability to detect recent drug use within a relatively tight window of detection compared to urine and hair testing, is something we will see more and more employers turn to in an ever-increasing litigious environment brought on by restrictive legal marijuana laws.
EBI: Recently, the New York Department of Labor issued guidelines that appear to prohibit employers from testing for marijuana under most circumstances. Do you think other states will issue similar restrictions?
Current: The DOL guidelines in New York make the Empire State the most pro-marijuana state in the country, even more so than California, Oregon, Washington, and Colorado, the original trendsetting states in the legalization movement. However, while these new restrictions do limit when New York employers can test for marijuana, they leave some wiggle room. For example, covered employers must still comply with the federal DOT regulations that require marijuana testing of applicants for transportation-related safety-sensitive positions as well as random, post-accident and reasonable suspicion testing for marijuana of employees in similar positions. As well, the DOL guidelines allow employers to test for marijuana under other limited circumstances.
That said, I will predict the following. First, there will be legal challenges to the prohibition of testing for marijuana in New York as employers face skyrocketing costs and mounting lawsuits brought on by marijuana-impaired workers causing accidents. And second, other states will attempt to follow New York’s example, but the process will take time. I think many states will probably be discouraged by the negative aftermath that is sure to unfold in New York.
Legalizing marijuana does not make it less dangerous or the consequences less costly. And restricting drug testing, as New York has done, just makes it more difficult for employers to ensure the safety and wellbeing of their workplaces, which they have an obligation to do.
As EBI continues to monitor evolving marijuana laws, we’re also working diligently to deliver best-in-class resources and drug testing solutions. EBI’s Intercept Oral Fluid Drug Test is an easy-to-use kit that allows you to get a sample safely without putting anyone at risk. It’s an excellent choice for pre-employment, random, post-accident testing, and work from home testing.
We recently achieved a Consortium/Third-Party Administrator certificate of accreditation from the National Drug & Alcohol Screening Association for meeting the highest industry standards for drug and alcohol testing. EBI is one of only ten service agents that have received this honor, given to providers who exemplify the management of an employer’s Department of Transportation drug and alcohol testing program.
We are committed to helping employers navigate changing marijuana laws. If you have any questions, please reach out to our team.
Jennifer Gladstone is a news anchor and journalist with more than 20 years of experience in front of the camera. She's worked in several markets, large and small, and has performed nearly every task needed in a newsroom. As EBI’s Screening News Editor, she keeps EBI’s customers and blog subscribers up to date on the latest screening news and legislative alerts affecting companies of all sizes.