Recently, Quest Diagnostics, a company offering drug-testing services to employers, issued a report highlighting year-over-year double-digit increases in positive urine tests for marijuana between 2015–2017 in almost one-third of all U.S. industry sectors. The company has catalogued over thirty years of national workplace drug positivity trends, and it reports significant increased positive tests both in the general workforce and the federally-mandated, safety-sensitive workforce. The increased rates of positive detections have been most “striking” in states that have enacted recreational use statutes. The data clearly shows that, across the board, more working adults are using marijuana than any other time in recent history.
This puts employers in a precarious position. Employers are tasked with maintaining productivity and safety within the workplace, but as the country trends toward greater legalization, more and more employees are consuming marijuana in their free time. Standard drug tests measure whether an individual has used marijuana, not whether the individual has used the drug on the job or whether he or she is impaired. There are no current proven technologies available on the market to test a marijuana user’s level of impairment. This makes testing for marijuana different from testing for other substances, including alcohol. Each marijuana user metabolizes the plant differently, and a test may produce a positive result long after an individual has used the drug. As such, an employee or potential employee may test positive even though there are no concerns with on-the-job impairment.
To further complicate matters, particularly for companies with locations in more than one state across the region, an employer’s right to discipline an employee for a positive drug test may differ depending on where the employer is located. In Minnesota, unless a failure to discipline would violate federal law or regulations or cause an employer to lose a monetary or licensing-related benefit under federal law or regulations, employers may not discriminate against an employee because he or she is a patient enrolled in the state’s medical marijuana registry program or because the patient tests positive for cannabis components or metabolites. There are exceptions if the patient used, possessed, or was impaired by medical cannabis at the place or employment or during the hours of employment. Minnesota is the only state in the immediate region to offer such affirmative protections.
Some employers are required to screen for marijuana pursuant to state or federal job contracts. Absent these factors, employers are free to adopt policies that work for their business. Across the country, some employers who are not otherwise mandated to test are transitioning from a zero-tolerance workplace model to one that does not test for marijuana use. In large part, this is driven by a tight labor market. As certain sectors of the labor market experience a labor shortage, employers in those sectors may find that testing for marijuana use for applicants in non-safety-sensitive positions is not worth the cost, and employers who continue to maintain zero-tolerance drug policies may find their pool of potential hires limited.
For many employers, maintaining a zero-tolerance drug policy will continue to make sense and those employers are free to restrict marijuana use to the fullest extent permitted by law. But other employers may find that switching from a zero-tolerance policy to an impairment-based policy affords them the leeway to hire otherwise-qualified employees who may be excluded through blanket drug testing. Regardless of whether an employer continues to test for marijuana or not, it is important that marijuana policies be communicated clearly.