Is drug testing for marijuana a thing of the past?

Marijuana’s nationwide reputation has done a cultural 180, shifting from an illegal substance worthy of jail time, to a medicinal and recreational one that’s protected by anti-discriminatory laws.

A decade ago, more than half of all drug arrests were because of marijuana, according to the ACLU, and states spent more than $3 billion per year enforcing marijuana laws. Today, 21 states consider it illegal for employers to discriminate against employees for use of medical marijuana. Five states and seven cities, including Washington D.C. and Atlanta, protect employees from discrimination based on the recreational use of marijuana.

What’s behind this shift? Paul Armentano, deputy director at NORML (National Organization for the Reform of Marijuana Laws), a non-profit organization working to further amend marijuana laws on the state and federal level, views this evolution as reflective of the true reality around marijuana’s risk to the workplace.

Read more: Policy, not punishment: How to approach drug testing in the workplace

“This notion that individuals who use cannabis don't pose a work or public safety threat in the workplace should not be a new revelation,” Armentano says. “I think that employers are responding to changes, not just in policy, but changes in public opinion and cultural opinion, and they are rethinking their policies with respect to marijuana.”

Marijuana’s relationship with the federal government turned officially adversarial after president Richard Nixon declared a “war on drugs'' and signed the Controlled Substance Act. The law categorized marijuana as a schedule 1 drug — the most dangerous classification. Over the course of its enactment, the law has disproportionately targeted Black people, who are nearly four times more likely to be arrested for marijuana possession than white people, according to the ACLU. In 1998, the Drug-Free Workplace Act was passed, and many federal employers were required to test for marijuana, so much so that testing began to trend in the private sector. Employers were also incentivized with tax breaks and other benefits, Armentano explains.

The drug testing process has often targeted individuals who use marijuana outside of work. Often, these consequences are based on the stigma and misconception that marijuana is dangerous, Armentano says. But in the last decade alone, several studies have failed to find a correlation between cannabis use and higher rates of work-related injuries.

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For example, a 2020 study published by the Society of Occupational Medicine found that of those who had a work-related injury over the course of a year, only 4% reported using cannabis in that same period.

Another study, published in the National Bureau of Economic Research, specifically looked at the effect recreational marijuana use would have on worker’s compensation benefits for those between 40 and 60 years old. Researchers found declines in worker’s compensation use, as well as non-traumatic workplace injuries. They theorized that access to an additional form of pain relief contributed to these drops.

“There’s some understanding that individuals who use cannabis away from the workplace do not need to be targeted,” Armentano says. “Now that the illegality has been stripped away in many of these jurisdictions, employers are realizing that they have to look at new ways to test their employees, and you're going to see that trend continue as more states legalize their adult-use marijuana markets.”

As employers shift their understanding around marijuana’s impact on work, they should also shift their policies around drug testing, too, Armentano says. Traditional drug testing, often done through a urine sample when looking for marijuana use, does not necessarily indicate that the employee is currently under the influence, Armentano explains. Urine tests can detect marijuana one to five days after use for an occasional user, one to three weeks for a regular user and four to six weeks for those who use it multiple times a day. Additionally, these tests do not detect the psychoactive ingredient in marijuana, THC.

“You have a test that does not provide any particularly useful information to the employer,” says Armentano. “It doesn't indicate when this person was last exposed to cannabis, and it certainly doesn't identify whether they’re impaired by cannabis.”

Read more: Drunk and high at work? Employers confront a new addiction crisis

Armentano suggests performance testing as a more effective alternative since it assesses impairment by allowing individuals to set a baseline for how they cognitively behave by undergoing a series of tests. If an employer is concerned an employee is under the influence, they would have the employee undergo these same tests, which would potentially examine short-term memory and time perception — abilities that those presently impaired by marijuana would typically struggle with.

“The issue isn't whether this person might have used marijuana three days ago or three weeks ago,” says Armentano. “Someone could use cocaine and 48 hours later, they will test negative for cocaine. Somebody could use marijuana and test positive for it a month later.”

One such impairment testing platform is AlertMeter, which assesses cognitive performance through an array of quizzes that can be accessed from a smartphone. The platform claims to reduce worker’s compensation by 70% and increase productivity by 18%. In one case study, AlertMeter worked with a company that regularly tests 400 employees at the cost of $500,000 per year. Switching to AlertMeter reduced costs by 80%.

Still, some U.S. industries, such as the airline and trucking industries, must drug test for marijuana as federally mandated safety-sensitive workers. And unless there is nationwide legalization of marijuana, it is uncertain whether these industries will move towards performance testing.

There are some changes on the horizon: the latest states to legalize marijuana have also made sure to prohibit employers from refusing candidates if they test positive for cannabis in pre-employment tests, suggesting that, to some degree, government officials and workers want to move away from past precedents. Additionally, The Marijuana, Opportunity, Reinvestment, and Expungement (MORE) Act of 2021 is currently being debated in the House Judiciary Committee, and if passed, would remove marijuana from the Controlled Substance Act, ending the conflict between federal and state laws.

“Federal drug testing standards have not been significantly amended in 30 years, and there are many industries that don’t have a choice,” says Armentano. “This isn’t to say that we shouldn't be concerned about occupational safety, but we need better tools to accurately identify impaired individuals.”