Legalizing marijuana usage and employers

As more states legalize marijuana use, employers, providers and legislators grapple with the interplay between legal use, impairment and safety risks at work. The drug testing programs that employers have historically used as an effective deterrence and detection tool are no longer useful when addressing marijuana. In the era of legal marijuana, a new workplace testing strategy is needed that allows for legal off-hours use but also effectively manages safety and reputational risk at work. Changing Drug Testing Strategy When employee drug testing began in the U.S., marijuana’s place in policy and testing was the same as for other Federal Schedule I drugs.

 If an employee or candidate tested positive for past use of heroin, methamphetamine, cocaine, or marijuana, the employer could make a negative employment or hiring decision. This policy is commonly known as “zero tolerance.” Zero-tolerance drug testing policies worked effectively. Workplace drug testing provides well-documented cost containment and deterrence that has been an important part of most employers’ risk mitigation strategy. But now that marijuana use is legal in 35 states and more state-level legalization is likely, zero tolerance is no longer a viable option for many employers.

As a result, Consumer Reporting Agencies and Third Party Administrators that offer drug testing as a key product to employers should update their service offerings. Employers need a new drug testing strategy that accommodates legal off-hours use of marijuana while still providing a deterrent and detection of use before or at work, where it causes safety and reputational risk for employers. For employers, it is common sense that marijuana use changes behavior in a way that creates safety and reputational risk. Studies from the National Highway Traffic Safety Administration show that the period of peak impairment is short – about three hours after consumption. With legal cannabis use ever increasing, the relevant question is no longer IF an employee used sometime in the past, but rather WHEN that employee used.

If off hours use is legal, what really matters to employers is use just before or at work, during this peak impairment window. Service providers need a drug test that identifies only recent use of marijuana to help employers make this finding. Existing tests using urine, hair, and oral fluid cannot distinguish very recent use from past off-hours use and therefore they cannot provide employers with the data that is now required to make fair, and in some states legal, employment decisions. Policymakers in various states have seen the flaws with these tests and have implemented “off-duty use” protections. The “off-duty” statutes prohibit employers from taking an adverse employment action against an employee who engaged in a legal activity on his or her own time. In these states, employers need a test that can determine very recent use.