With 10 states and Washington, DC having fully legalized cannabis for recreational purposes, and many other states legalizing it for medicinal purposes, company leaders might be wondering if it is still worth it to test employees for a substance that is on par with alcohol in an increasingly large portion of the country.
The answer to that question will largely depend on a company’s attitude toward safety, whether it has contracts with the federal government, how desperately it needs workers and the laws of the individual states where it operates, which can fluctuate wildly.
It is not unreasonable for a company to have a policy stating that workers cannot be under the influence of drugs, including cannabis, while they are at work. And, since it is still illegal federally, a company has every right to insist that employees not be under the influence of cannabis. Under Department of Transportation (DOT) regulations, agencies under the scope of the DOT are obligated to perform drug testing for cannabis along with cocaine, opiates, amphetamines, methamphetamines and phencyclidine (PCP) for safety sensitive positions.
So, is testing for cannabis worth it?
If your company does safety sensitive work, testing for cannabis may well be worth it. Cannabis is the most commonly used drug in the United States and the one most likely to be detected by a workplace drug test. Because it is still illegal federally, a company can have a workplace policy that prohibits employees from using the drug, at least recreationally.
Cannabis impairs people’s ability to function on a worksite by causing users to exhibit symptoms that include: impaired coordination, difficulty thinking and problem-solving, memory problems, and having an altered sense of time.
The use of cannabis by employees has been linked to increased workplace accidents, injuries, mistakes and employee absenteeism, which has impacted employer liability, workers’ compensation costs, and health insurance costs.
Because of this increased safety risk, an employer may want to test for cannabis to ensure that no employees are under the influence while on the job.
However, things get a little complicated because testing positive for cannabis does not mean a person is under the influence of cannabis at the time of testing. They might use it in their off-duty hours and they can still test positive for it with a urine or saliva test.
A company would have to have a zero-tolerance policy for recreational cannabis usage (including off duty hours). It should be noted that there have been court challenges about cannabis use by employees and the courts in various states have sided with employees some of the time and employers some of the time.
Federal Government Contracts
A company that is contracted to the federal government is obligated to test for cannabis along with the other aforementioned drugs. This is part of the federal government’s Drug Free Workplace Act, which states that companies receiving a federal contract worth $100,000 or more and/or organizations that receive a federal grant of any size must make a good faith effort to maintain a drug-free workplace policy.
However, there have been instances of state laws overruling the federal law. For example, in Connecticut, a woman who used cannabis for medicinal purposes to combat her post traumatic stress disorder sued a company that had made her a job offer and then rescinded it after her pre-employment drug test came back positive for THC, the psychoactive ingredient in cannabis.
She had fully disclosed her medical usage of cannabis to the company before the job offer and told the employer that she only used cannabis in the evenings after work, but the company argued that since it was a federal contractor, it was obligated to rescind the job offer, which would have stood had she passed the drug test.
A court sided with the woman, stating that the company was merely obligated to make a “good faith” effort to maintain a drug free workplace and was not required to have a zero-tolerance policy. The court also said that the federal policy was meant to prevent drug usage in the workplace and not outside of the workplace.
States all have their own laws that pertain to drug testing, so it is vital to know the rules not only in the state where a company is headquartered, but all the states it operates in. This is especially important in states with legalized cannabis.
Because of the current low unemployment rate, many businesses are having a hard time attracting the number of workers they need. Because of this, some companies have decided not to bother with drug testing for cannabis anymore. And, in fact, it has been theorized that some companies where the safety standards are a bit less serious might even start advertising their lack of drug testing for cannabis as a perk to try and attract more applicants.
Whether it is still worth drug testing when it comes to cannabis is dependent on so many factors and those factors are in constant flux, making it a difficult decision for employers. As cannabis continues its legalization march across the country, it is likely the decision to test or not for the drug will become even more difficult.