Balancing Safety and Fairness in Today’s Drug Testing Environment

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So you’re a Drug-Free Workplace. Or maybe you were solidly drug-free but then cannabis legalization led to confusion about drug policy, testing, and enforcement.  

How can you adapt to a shifting legal landscape and societal expectations surrounding cannabis? 

A Fairness Problem 

The current environment for marijuana has become a sticky wicket, as the Brits might say. After all, if marijuana is legal for medicinal or recreational use, as it is in many places, employers struggle with the question of if it is fair to discipline—let alone terminate—an employee who engages in a legal activity during their private time off. 

Even if marijuana isn’t legal in your company’s jurisdiction, how can you tell if a worker traveled to an area where it has been legalized and used as permitted there? 

Unfortunately, popular drug tests using blood or urine are rather indiscriminate, identifying only that someone has used over the past several days or weeks. Oral swabs target a narrower period but still cannot identify impairment. If use could have taken place yesterday and the effects have worn off, what is a fair response to a positive workplace drug test? 

Safety Can’t Be Ignored 

A societal shift has occurred. Today, cannabis is considered by many Americans to be more akin to alcohol than to other Schedule I drugs. Where allowed under state law, marijuana is available and legal for adults to use on their own time. Nonetheless, just like alcohol, marijuana cannot be allowed to impinge on workplace safety. That wouldn’t be safe or fair to the employee or their colleagues, either! 

In broad terms, for roles not regulated by agencies such as the Department of Transportation, the effective zero tolerance policies originating in the 1980s now potentially come with complications. Some of the issues are purely legal, related to when employers can test for cannabis and what actions they are permitted to take based on a positive result. With state and local variety, the U.S. has become a confusing legal patchwork. 

Other problems extend beyond the legal sphere. Countless employers sticking to zero tolerance and engaging in pre-employment marijuana testing, for example, are finding it difficult or impossible to fill all their open jobs. They find that too many candidates test positive and they’re constantly going back to the well to identify additional prospects.  

If the organization is also dismissing many employees after positive marijuana tests, they may face a staffing crisis. In many cases, the old ways simply don’t work anymore, but it’s difficult to determine what does. 

Some Resources to Guide Your Investigation  

We cannot claim to have all the answers here. Although Asurint’s General Counsel Kelly Uebel and the Asurint Compliance Screen Team  monitor and report on the issues, and our drug testing experts stay on top of new solutions, we cannot offer legal advice in this format or any other.  

What we can do is to provide educational resources to help you prepare for your own consultations with counsel as you search for solutions that balance fairness and safety.  

Here are three we would recommend: 

  • 50 State Guide to Drug Testing: Following the model of our popular 50 State Guide: Employment, Hiring, Background Screen Laws, Asurint has introduced a 50 State Guide to Drug Testing. We track regulatory and legal changes at the state and local level, where it can inform employers’ decision-making. 
  • Marijuana & Beyond: This webinar relates critical updates for your drug testing program. Our two hosts, Kelly Uebel and Marc Bertrand, Asurint’s Director of Drug Testing, cover topics ranging from observed behavior reporting and oral fluid and breath testing to new rules about “natural medicines,” including psychedelic mushrooms. It’s worth adding to your playlist! 
  • The Advantages of Breath Testing for Recent Cannabis Use: A deep dive into a new technology, this webinar examines an innovative marijuana breathalyzer and its potential role in workplace drug testing. With discussions of reasonable suspicion, random, and pre-employment drug testing and the complexities of identifying impairment, this is a must-see (or must-listen!) webinar with an extensive and informative Q&A session.  

Also worth mentioning is the blog here, where we issue notifications when marijuana-related laws change in various jurisdictions. We also provide updates on key litigation that can supply insights into how certain courts are interpreting newer restrictions and requirements. 

Again, all of these resources are intended for educational purposes. The best practice for any employer is to speak with legal counsel regularly to ensure policies and procedures remain aligned with this rapidly changing situation, but we do hope that our efforts help increase your issue awareness as you strive for the perfect balance in your workplace. 

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