Employers are questioning their stance on drug testing and what a drug-free workplace looks like as marijuana and other recreational drugs become legal and less stigmatized.
As the U.S. job market faces an unprecedented labor shortage, increasing marijuana legalization and scrutiny pointed toward workplace culture are causing some employers to make changes to their policies. Just 1.47% of job postings in the U.S. say they require pre-employment drug testing, while only 0.66% stipulate regular drug testing once hired, according to clinical laboratory Quest Diagnostics.
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“Everything is rapidly changing across the country,” says Barry Sample, senior director of science and technology at Quest Diagnostics. “But there are both safety as well as productivity considerations always present.”
With marijuana legal in 19 states, whether on a medicinal or recreational level, employers are seeing a rise in drug positivity rates. In 2020, Quest Diagnostics reported that overall positivity for drugs has climbed 12.2% since 2016. Between 2012 and 2020, pre-employment testing positivity for marijuana climbed from 1.9% to 3.7%, while testing positive for marijuana after an on-site accident rose from 2.4% to 6.4%.
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This is a potential cause for concern, as the data includes not only the general U.S workforce but the federally mandated safety-sensitive workforce of workers like bus drivers, pilots and train operators. These industries may have little choice in whether to loosen their stance on drug testing, even as these practices become less prevalent in the private sector and state laws and perceptions change, Sample explains.
“I advise employers to consult an attorney who's knowledgeable on the issues in their state as they're trying to craft any drug-testing program,” says Sample. “Employer drug testing programs should then be clearly outlined, written down and communicated to the employees.”
Nationally, there has been a 5.2% decline in testing for marijuana in the workplace since 2015. In states that allow the recreational use of marijuana, that decline rose to 8.5%. Twenty-one states, including Arizona, Pennsylvania and New York, have employee protections prohibiting an employer from discriminating against those who use medical marijuana. Nevada asks employers to even modify working conditions for those who need marijuana for medicinal purposes.
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If employers plan to make changes to their drug testing program, transparency will be their best friend, Sample says. Employees should be aware of what a drug-free workplace requires and what accommodations are available.
“Employers should educate their employees about the risks and the dangers of using drugs and let them know the impact that these drugs may have on their ability to safely conduct their duties,” says Sample.
As for the employee side, the Americans With Disabilities Act makes it illegal for employers to discriminate against recovering alcoholics or drug users who do not currently engage with an illegal drug. In addition, under the Family and Medical Leave Act, employers must allow employees who have worked for at least one year to take 12 weeks of unpaid, job-protected leave, which can be used for substance abuse recovery treatment.
Notably, the positivity rates for many drugs — with the exception of marijuana and ecstasy — have either declined or remained the same when compared to previous years, according to Quest. For example, cocaine positivity rates have been at their lowest since 2012. However, a drug-free workplace does not mean employees have no history with drugs or cannot suffer from addiction.
As the pandemic heads into its second year, one thing is certain: the workplace is subject to constant change. With more states predicted to vote on the legalization of marijuana in 2022 — eleven states are working to place marijuana use on their ballots for 2022, and California attempting to be the first state to legalize psilocybin mushrooms — policies on drug testing will also continue to be in flux.
“The bottom line is for employers to have well-crafted policies that are well-communicated with lots of resource materials available to employees,” Sample says. “One of the goals here is to make the workplace safer.”
