Is Drug Screening Relevant Anymore? | DCR Workforce Blog

Is Drug Screening Relevant Anymore?

Cookie, anyone? Usually, this question may elicit a positive response, but what if the cookie in question is a ‘pot edible’, infused with marijuana? Then, the response would depend on personal choice, as well as the person’s health condition and their location because some states have legalized the use of Cannabis for medical or recreational purposes. Even states which sanction such use are keen to set restrictions on the packaging, labeling and potency of such items. Also, even though sanctioned by individual states, the practice is still an offence under federal law.

Colorado, Washington and the District of Columbia permit the use of recreational marijuana with Alaska and Oregon set to follow suit in 2016; while 23 allow its medical use. The question that is paramount on the minds of employers in such states is this: can I still conduct drug tests on job applicants, and deny a job over a positive result, especially when the use of drugs is legally sanctioned? Several months ago, we asked this question. We are now beginning to see how this issue is playing out.

The number of positive tests stands at over 20% in the states which sanction drug use, and 3.7% in states which do not sanction such use. So, are the employers relaxing their drug testing policies in the states which sanction them? Not really!

Even states which allow the recreational use of marijuana do not sanction it at workplaces. Most people believe that the approval for even medical marijuana is only useful to protect a person from prosecution but offers no further guarantees. State and municipal government agencies are some of the strictest ‘zero-tolerance of drug use’ employers when it comes to drug tests. They expect an applicant to truthfully declare any use of drugs for as long as 12 to 36 months prior to their job application and an affirmative response usually results in disqualification.

In states that have legalized marijuana for any purpose, what is causing the disparity in policy between business and society at large?

  • Federal law makes it illegal to cultivate, possess, use, or distribute marijuana.
  • Federal contractors, with contracts worth $100,000 or more, have to mandatorily keep their workplaces free of drugs.
  • Safety sensitive jobs like driving make drug use unacceptable and require drug testing. The Department of Transport prohibits the use of marijuana for drivers, pilots, and others in “safety-sensitive” jobs.
  • The Occupational Safety and Health Administration (OSHA) puts the onus of ensuring that workplaces are free of recognized hazard on the employers.
  • However, the Department of Justice stated in 2013 that federal laws against drugs will continue to be maintained, but the federal government would not challenge the legalization of marijuana in Colorado and Washington.

The bottom line is, businesses and government agencies have elected to err on the side of caution. Whoever thought an employer’s efforts to recruit talent could be fraught with such pitfalls?

Risks with Allowing Drug Use at the Workplace

Relaxing one’s zero-tolerance policies could results in some risks for employers, who have every right to impose strict drug policies at their workplaces. They need to ensure that they are not held liable for compromising the safety of their workplaces before making any drastic changes to their policies. They may also seek to insure themselves from any possible negative consequences of such relaxation in policies. Additional complications are surfacing:

  • Existing laws allow an employer to challenge a worker’s injury-related compensation on account of intoxication or impairment caused by the use of alcohol, drugs or even medication. The employer may also be able to terminate the worker. The ability of marijuana to test positive for months after its use, even when its use was in off hours for recreation purposes, complicates this situation.
  • The courts have so far failed to reach a consensus on the issue of paying worker’s compensation for a worker’s supply of marijuana for medical purposes.
  • The damage from an auto accident caused by an employee using drugs could make an employer liable for exorbitant account of damages to property alone, requiring massive coverage for such eventualities.
  • There could be a need to seek coverage against general liability too, should the worker using drugs injure colleagues, customers or other third parties.
  • When expanding their businesses and opening additional facilities, most companies scrutinize workers comp and other labor-related costs. Companies that place workers in “high risk” occupations may find these states less attractive as the potential for worker impairment is greater.

Some argue that marijuana helps treat glaucoma, Crohn’s disease, multiple sclerosis, nerve pain and effects of chemotherapy, among other ailments, enabling thousands of workers to lead productive careers not hindered by the symptoms of their diseases. Others caution against major policy changes because the risks of liability for failing to ensure workplace safety are too high for any employer. It is also interesting to note that 45% of staffing firms say drug tests are usually part of every contract for contingent staffing and admit that such testing is important as it turns up issues which could be otherwise missed. Through this blog, we’ll keep you posted on the inevitable legal challenges that will result as companies struggle to understand how to accommodate this legal and cultural change.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.