Legalized and medical marijuana runs afoul of drug testing in the workplace

At a Society for Human Resource Management conference in Washington DC last month, a session on drug testing in the workplace was so heavily attended that organizers had to switch rooms to accommodate the audience. Even then, it was standing room only. And the hour set aside for the talk wasn’t enough: outside the hall, employment attorney James Reidy, the presenter, answered questions for 40 minutes afterward.

It’s easy to see why interest in drug testing is growing. The number of workers who tested positive for drug use had its first year-over-year increase in a decade. Meanwhile, across the US, states and municipalities are relaxing restrictions on marijuana use. “It’s becoming of increasing interest [to companies], mostly because of changing state legislation on medical and recreational marijuana use,” said Kate Kennedy, a spokeswoman for the Society for Human Resource Management .

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Opposing responses

The most recent figures from drug-testing company Quest Diagnostics show that positive results for marijuana use in the workforce rose 6.2 % in 2013. This contributed to the first rise in positives for overall drug testing since 2003. In the two states that legalized recreational marijuana use before the report was issued, the increase was even more pronounced: in Washington, use was up by 23%, and rose by 20% in Colorado.

Now that 23 states have legalized medicinal marijuana use, and four states and Washington DC have legalized recreational use, companies are trying to decide between two extremes: tightening policies on positive test results to keep users out of their workforces, or loosening them to avoid driving away qualified employees.

Employers are also increasingly facing legal challenges from employees who say that state law allows them to use marijuana away from work. Lawsuits involving marijuana laws and the workplace are multiplying, but several have already been ruled in favor of employers. In cases involving an aluminum company in Montana and a steel company in Oregon, courts have found that employers don’t need to accommodate the medical marijuana needs of employees. Another case involving a Walmart in Michigan also ruled in favor of the employer. And a quadriplegic worker for Dish Network in Colorado was fired after a drug test resulted positive due to his use of medical marijuana. Plaintiff Brandon Coats has appealed the case to the state’s Supreme Court.

Related: Anti-marijuana group suing Colorado over legalisation of cannabis

At stake are potentially competing concerns. On one hand, there are worries about employee privacy and morale; on the other, there are issues on workplace safety and productivity. The question is, can these two sides be reconciled?

“It’s a changing arena,” said Barry Sample, director of science and technology at Quest Diagnostics. Many regard Washington state and Colorado as harbingers of future trends in recreational marijuana use, he said. But, he cautions, it is still too early to draw strong conclusions. “While these results are striking, I take the long view,” he said. “I need to see more data.”

On-the-job impact

Sample isn’t the only one who sees the need for more research. Evren Esen, director of research for the Society for Human Resource Management, said that her organization will soon be polling members from states that have recently passed marijuana laws. Among other issues, their surveys will address questions about productivity and absenteeism.

When recreational use became legal in Colorado last year, a survey by the Denver-based Mountain States Employers Council reported that slightly more than one in five companies were going to make their drug-testing policies “more stringent”, with harsher consequences for positive drug tests.

Related: Marijuana may be legal, but it's still taboo in Washington DC

This response isn’t surprising: the US Department of Labor estimates that drug and alcohol users drained an estimated $82bn from businesses due to lost productivity in the year studied. Another recent survey, published by the Department of Health and Human Services , showed that almost 10% of adults who are employed full time use illicit drugs – a number that is increasing, likely driven by marijuana use.

Still, Reidy said, a drive to test more or toughen penalties for positive tests will doubtless bring up privacy issues for many employees. “There’s the notion that ‘what I do on my own time is my own business,’” he said. The issue is not only complicated by medical and recreational marijuana laws, he said, but by the fact that testing only measures whether a person has recently used a drug; it doesn’t measure impairment.

Another possible unintended consequence, Reidy said, is that as the workforce becomes increasingly nomadic, employees may simply up and leave if they consider a workplace’s drug-testing policies to be too strict. “This could fray the trust between employer and employee,” he said, and lead to a “brain drain” in certain sectors.

Some companies are already worried about losing good workers, said Curtis Graves, spokesman for Colorado’s employer council. “At first, they were freaked out by the law, but now they’ve seen they might miss out on quality employees who happen to use marijuana recreationally on the weekends,” he said.

Related: Alaskans free to enjoy marijuana but smokers face dizzying legal landscape

Different states also have different laws when it comes to the consequences for employees who test positive for drugs. Maine, for example, prohibits companies from firing employees the first time they test positive, and requires them to offer an opportunity to enter rehab.

At the end of Reidy’s talk about the changing landscape of drug testing last month, hundreds of human resource officials left the conference room scratching their heads, he said. This is likely to continue. “[It’s] a quickly evolving issue,” he said. “By this time next year, things will probably have changed again.”

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