A Screening Minefield

​Drug use by American workers is the highest it's been in more than a decade, and some companies and states are changing their preemployment screening processes to account for the shift. More than half of U.S. states have legalized the use of cannabis either medically or recreationally. This shift, combined with a strong economy that makes finding quality job candidates more challenging, is compelling some organizations to adapt. 

Nationwide Trends

Quest Diagnostics, a leading provider of drug screening services, recently released its annual Drug Testing Index, an analysis of national workplace drug positivity trends derived from its lab analysis. Its 2017 statistics show that 4.2 percent of employees screened for drug use tested positive last year—the highest positivity rate in more than a decade. Rates of cocaine use among tested employees rose, as did methamphetamine use in the Midwest and South United States.

One statistic is sure to catch the attention of employers—the rate of employees testing positive for marijuana has continued a five-year increase, but increases were most striking in states that have legalized the recreational use of marijuana. This is true for both the general U.S. workforce, as well as the federally mandated, safety-sensitive workforce—rail, bus, and truck drivers; pilots; and workers in nuclear power plants, as mandated by the U.S. Department of Transportation (DOT).

"These increases are similar to the increases we observed after recreational marijuana use statutes were passed in Washington and Colorado," said Barry Sample, senior director of science and technology for Quest Diagnostics, in a statement. "While it is too early to tell if this is a trend, our data suggests that the recreational use of marijuana is spilling into the workforce, including among individuals most responsible for keeping our communities safe. We encourage policy analysts to track these trends closely to determine whether a correlation between the state legalization of marijuana and increased workforce drug use, as suggested by our data, bears out in other research."

As the legalization of medical and recreational cannabis continues to spread throughout the United States, it's becoming clear that the employment challenges it poses are not going away any time soon. In 2017, researchers saw a slight decline in testing for marijuana in the workplace—98.4 percent of tests screened for marijuana, compared to 99 percent in 2016. About 70 percent of drug tests in the workplace are for preemployment screening, according to Quest.

Several nationwide organizations have already taken steps to ease zero-tolerance policies, including AutoNation, Inc., which employs 26,000 people across the country.

Below is a selection of how employers across the country are adapting.Birnbaum explains. ​

Nevada

Recreational use of marijuana was legalized in late 2016, but the market was not launched until last July—and took off from there. Forbes reported that in just four months, Nevada sold $37.9 million in cannabis products—that's compared to the $22.56 million that Colorado made in the first four months of its legalization.

The popularity of recreational marijuana is reflected in the Drug Testing Index, which found a 43 percent jump in employees who tested positive for marijuana in the last six months of 2017 alone. That also includes a 39 percent increase in marijuana positivity in safety-sensitive workers.

And less than a year after Nevada residents could start legally buying marijuana, companies are responding. Caesar's Entertainment Corporation—owner of Caesar's Palace in Las Vegas—announced in May that it would no longer screen job candidates for marijuana use. The organization has stated that it was missing out on quality candidates due to "counterproductive" marijuana prescreening policies. The company will continue to prescreen safety-sensitive positions, as mandated by the DOT, and will test employees who are believed to be impaired at work. No other gaming employers have publicly altered their prescreening policies as of press time.​

Maine

In 2017, citizens of Maine approved a new law that not only legalized recreational marijuana use but made it illegal for employers to prescreen job applicants for marijuana use. While retail shops aren't expected to open until next year, employers had to cease drug screening starting in February of this year. The law also states that employers cannot refuse to employ someone 21 or older who uses marijuana outside of the workplace. However, a previous mandate that employers could not discipline employees who tested positive for marijuana—because they may have used it outside of the workplace—was revised in May.

The law "does not affect the ability of employers to enact and enforce workplace policies restricting the use of marijuana by employees or to discipline employees who are under the influence of marijuana in the workplace."

Organizations that employ DOT-designated safety-sensitive workers—who, under federal law, must be tested for marijuana use—face a gray area in the contrasting state and federal laws. Those organizations are still federally required to drug test designated workers but are not exempt from the state's rules on punishing employees who use marijuana outside of work. So, if a job applicant or employee in a safety-sensitive position tests positive for marijuana use, Maine employers might not be able to take any adverse action against them, beyond stopping the employee from performing safety-sensitive functions.

The antidiscrimination law was revised in May and now allows employers to discipline workers who are under the influence of marijuana in the workplace in accordance with the employer's policy on marijuana. It remains to be seen whether Maine's conflicting nondiscrimination provisions will be enforced by the courts, or how the revised disciplinary rule will play out in the workplace.​

New York

While some employers may be quietly removing marijuana testing from their preemployment process, others may choose to enforce existing regulations more loosely. That appears to be the case with the New York Fire Department (FDNY), where reports have emerged that more than two dozen firefighters have returned to work after testing positive for drugs. The current FDNY manual describes a zero-tolerance policy, but more recently firefighters have been telling reporters that employees who fail a drug test are instead sent to an eight-week rehabilitation program and must acquire a dozen character references to rejoin the forces—albeit at a different firehouse.

Rhode Island

A state court decision last year may have big implications for employers who screen potential job candidates for marijuana use. Medical cannabis has been legal in Rhode Island since 2006, but, like most states with some form of marijuana legalization, a positive drug test could still mean being fired or passed over for a job.

However, a job applicant who was denied the position due to her medical marijuana card pursued the issue in court and won. The plaintiff had applied for a paid internship and disclosed to her potential employer that she would not pass a drug test because she used medical marijuana. When she was not hired, she sued the organization, noting that its policy only prohibited the use of drugs on company property. 

The judgment has set a precedent that employers in Rhode Island cannot refuse to hire a medical marijuana cardholder, even if they cannot pass a preemployment drug test. The case does not require employers to make accommodations for medical marijuana users in the workplace but will certainly affect hiring processes in Rhode Island. And similar lawsuits in Massachusetts and Connecticut have been won by medical marijuana users in recent months, signaling a shift from courts' consistently siding with employers on drug testing matters.