There is much confusion about marijuana drug testing in the workplace, employers need to make decisions. What are the pros and cons?
Guest Author: Katherine Miller of Current Consulting Group, LLC
This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
A shocking 91% of today’s Americans support marijuana legalization for either medical or recreational purposes. As such, employers should not be surprised at the recent push by some states to drop marijuana from testing panels. As legislation trends towards limiting employer rights, and the use of marijuana becomes more commonly accepted, some employers may be questioning whether it makes sense to continue testing for marijuana.
Why Drop Marijuana from Your Testing Panel?
Simply stated, testing for marijuana can be a complicated issue, depending on the state. With widespread concerns about windows of detection and whether or not an employer can accurately determine impairment based on a marijuana positive drug test, some employers may assume that dropping marijuana from their panel is the easiest and safest option. As of January 2020, 8 bills have been proposed nationwide that would limit employer rights when it comes to testing for marijuana, or even prohibit testing under certain circumstances outright.
A small number of states have already limited or prohibited marijuana testing under certain circumstances. Even in states where testing for marijuana is still legal, the litigious nature of our culture means that although an employer may be in compliance with the law, they could still be taken to court because they chose to test an employee for marijuana.
Why Continue Testing for Marijuana?
Here are three good arguments in favor of continuing to test for marijuana. First, it deters habitual drug users from applying to work at your company. Second, in the event of an accident, a positive post-accident drug test result may position you to deny workers’ and/or unemployment benefits to those who test positive (check your state law). Conversely, the lack of a positive drug test result can expose your company to legal liability issues should an accident occur and the employee in question was under the influence of marijuana.) Third, it can help control costs associated with substance abuse by workers. Consider this: the projected annual cost of drug abusing employees to employers nationwide is $120 billion in lost productivity, $11 billion in healthcare costs, and $61 billion in criminal justice costs.
Undoubtedly, to stop testing for any type of drug, let alone marijuana, the number one illicit drug of abuse in America, can impact your bottom line.
Rather than dropping marijuana testing across the board consider testing for marijuana utilizing a testing methodology that more effectively measures recent use as opposed to historic use, eliminating the argument that testing is unfair to legal users of marijuana.
Legalized Marijuana in the Future
No state strictly prohibits testing for marijuana. Nevada, for example, limits pre-employment testing for marijuana, as does New York City, but no state has placed an outright ban on the practice. Even in states that have established some limitations, they have excluded workers in designated safety-sensitive positions. And, remember, federal regulations such as the drug and alcohol testing regulations from the U.S. Department of Transportation, are not affected by state laws. If you’re a DOT-covered employer, you must continue to test for marijuana as part of your DOT program.
Continuing to test for marijuana makes good business sense. Ensure that you understand all applicable state law(s) and ensure your drug testing policy is in complete compliance.
© 2010-2020 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder are required.
National Drug Screening, Inc offers a comprehensive guide for employers to consider for employment and marijuana use. Employers have a lot of questions around how to handle employee use of marijuana: Check out our: Workplace Considerations For Marijuana Use.
 Daniller, Andrew (2019). Two-thirds of Americans support marijuana legalization. Retrieved from https://www.pewresearch.org/fact-tank/2019/11/14/americans-support-marijuana-legalization/.
 The White House (2016). How Illicit Drug Use Affects Business and the Economy. Retrieved from https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/how-illicit-drug-use-affects-business-and-the-economy