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Employers Confront Questions About Substance Abuse and Screening Part I: Marijuana

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The U.S. seems to be entering a new era with regards to marijuana. For example, New York City just banned pre-employment testing for THC, effective next year. With this change, the city joins a number of other jurisdictions in evolving their marijuana screening regulations. Among them, Maine now prohibits employers from discriminating based on marijuana use, Delaware’s courts have confirmed medical marijuana protections, and Connecticut and Massachusetts have seen court decisions result in protections as well.

The shift in the regulatory environment toward potential accommodation of marijuana use—although not universal—raises a pressing question…

Is Zero Tolerance Still Viable? 

Employers in some jurisdictions may be required to address an employee’s medical marijuana use as they would any other type of disability, but this isn’t the only impetus for a loosening of standards. The tight job market itself is causing some employers to reevaluate their drug screening choices. THC is a common positive result on a pre-employment drug test, and some companies are finding it difficult to fill open positions solely with individuals who test negative.

A review of urinalysis tests performed in 2018, for instance, found a 2.5% positive test rate nationwide. Some industries are experiencing much higher positive THC test rates, with the retail sector leading with 5.3%. Even these statistics probably underestimate usage among American workers by a large measure, as job seekers tend to take a break in order to pass pre-employment drug screenings or pursue opportunities requiring no screening at all. In fact, survey evidence reported by USA Today finds one-quarter of workers admit to using drugs or alcohol on the job.

Further challenging employers, there are questions about interpreting cannabis tests from a risk perspective. THC takes longer to clear from the body than other substances. There are concerns that cannabis users are, in some cases, being rejected in favor of individuals who may be using “harder” drugs yet finding it easier to pass a drug test. At the same time, present testing technologies can generally indicate if an individual has recently used cannabis but cannot determine if they are impaired at a particular time, and this complicates the decisions facing employers when workers appear under the influence, accident situations must be examined, and so on.

Homing in on the Right Policy

Employers are finding that they must evolve their marijuana policies, working with qualified legal counsel to align company rules and testing protocols with state laws and their HR needs. All indications are that blanket nationwide policies are a long way off. Even as New York City and Nevada banned pre-employment cannabis tests, legislators included exceptions for roles like truck drivers, and employees who appear to be under the influence at work may still be tested.

Balancing disability protections, liability, employee privacy, recruitment success, and the many other issues involved is no easy feat. Some experts are looking toward an evolution in drug-testing policies, transitioning from simplistic “pass-fail” measures to a more nuanced interpretation based on a “dose-effect curve” to set appropriate cutoffs. Hopefully, such policies will someday be guided by more thorough science and enhanced testing capabilities. Already, some tests now distinguish between THC and CBD, which has no side effects and is federally legal, and potency tests to point to impairment level from THC are also becoming available.

In the meantime, employers must be on the lookout for legal changes and shifts in company needs and priorities, which could affect their marijuana screening policies and processes.

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