Drug Testing: Employers Can Still Invade Privacy In Legal States

drug test at work iStock / ajr_images

As more states legalize cannabis for medical and recreational use, many people are running aground on a frustrating contradiction. Despite all the benefits of cannabis consumption, particularly for chronic pain sufferers, employers can still drug test workers and discipline or terminate those who turn in positive test results. Cannabis-using job seekers are at a particular disadvantage since most states permit pre-hire drug testing and allow employers to discard applicants or even withdraw offers if marijuana use is detected.

Reagan-Era Policies

Drug testing is a Regan era policy that still exists today

Source: National Archives

Ever since 1988, when President Reagan signed an executive order mandating drug tests for all federal employees, corporate drug testing has been big business. According to a study commissioned by the Drug and Alcohol Testing Industry Association (DAITA) more than half of all U.S. employers conduct drug tests on job candidates, although two-thirds of those companies say they don’t drug test existing employees.

Employers frequently secure discounts on their insurance premiums if they agree to conduct drug testing, and many companies believe that drug testing reduces absenteeism and increases on-the-job safety. But for workers, the invasion of privacy, interference with treatment plans, and stigma outweigh these perceived benefits and put unfair limits on cannabis users’ freedom in the employment marketplace. There are even arguments that the practice is unconstitutional, but the Supreme Court has yet to weigh in.

Currently, twelve states put at least some restrictions on an employer’s ability to discriminate against medical marijuana patients, with one state, Maine, even protecting recreational users. But why isn’t it every state? Notably, California, one of the hotbeds of cannabis activism, has yet to pass any kind of protection for workers. Like legalization itself, the barriers are partly at the federal level and partly at the state level.

The Federal Ban on Cannabis

The primary sticking point is the fact that, despite the increasing number of states changing their own laws, federal law still bans marijuana. Corporate and employment law rulings consistently uphold an employer’s right to prohibit employees from consuming “illegal drugs.” As long as the federal status of marijuana remains unchanged, it remains illegal from an employer’s perspective. The good news is, the more states that pass legalization, the more pressure on federal lawmakers to permit use nationwide.

The Controlled Substances Act

The frequently-heard justification for opposing legalization at the federal level is that cannabis is still a Schedule I drug, meaning it has no currently accepted medical use and a high potential for abuse. Many doctors, researchers, and activists object to these claims about cannabis, but its Schedule I status makes it hard to officially study. Some activists are [petitioning] the FDA to change marijuana’s scheduling or de-schedule it entirely, but no one has a timeline for when that might be successful.

Limited Ability to Test for Intoxication

empty doctor workplace with drug test, stethoscope, coffe cup and glasses view from above at wooden table

iStock / 279photo

Employers in high-risk environments, such as those that require workers to operate heavy machinery or care for vulnerable populations like children or the elderly, express concerns that cannabis users will show up to work intoxicated and put themselves or others in danger. This is also a concern with alcohol consumption, but standard testing tools like the Breathalyzer or the field sobriety test make it reasonably easy to estimate intoxication levels on the spot, and a blood test can confirm intoxication with more precision, as alcohol is processed by the human body at a predictable and well-studied rate.

The same isn’t true for cannabis, unfortunately. Standard drug tests check for THC metabolites, which can stick around for weeks or even months after the date of consumption, depending on the user’s individual body chemistry, and can’t tell the tester anything useful about intoxication levels. In a Detroit Free Press article reporting on the objections Michigan employers have to legalization efforts there, Dr. Barry Sample of Quest Diagnostics explained the issue. “Saliva swabs and urine samples only show if THC has been used over the last few days, not a person’s level of impairment at the time of a test. Tests of hair samples will show THC levels going back as long as 90 days.” For an employer looking to investigate whether an employee involved in an accident was intoxicated at a specific time, the diagnostic technology simply isn’t there yet.

Working for Change

California state Assemblyman Rob Bonta, D-Oakland, is the lead author of a bill currently under review by the California state legislature, AB-2069, which would amend the government employment code and prohibit employers from discriminating against medical cannabis patients.

In an interview with the Sacramento Business Journal, Bonta argued that this is simply an extension of the protections already in place for prescription drug users, and that discriminating against cannabis users could push patients to more dangerous alternatives, such as opioids.

“As we continue to make the massive transformation to legalization of adult use cannabis, and a full regulatory (system) for medical cannabis … we need to make sure the rights of users of cannabis as medicine are protected.”

AB-2069 was heard by the California Assembly Committee on Labor and Employment on April 26th, 2018, and, as of May 2018 is at “Held Under Submission” status, meaning the bill’s author and the committee members want to discuss the bill further. California voters who would like to express their support for the bill can contact Rob Bonta’s office here.

Hope on the Horizon

For cannabis users, salvation may ultimately come from the most unlikely place: employers themselves. As USA Today reports, increased rates of consumption, combined with the strong economy’s effect on the labor market, are making it hard for employers to be as discriminatory towards marijuana as they once were. Even Trump’s highly conservative administration is backing off of the traditional Republican party line about marijuana. In an April 2018 congressional hearing, Labor Secretary Alexander Acosta said that while “there are sometimes valid health and safety reasons why someone who cannot past a drug test shouldn’t hold a job,” employers should be more open-minded. “We have all these Americans that are looking to work. Are we aligning our drug testing policies with what’s right for the workforce?”

Even employers that haven’t quit drug testing entirely are quietly dropping THC from the list of tested substances. New Hampshire employment lawyer James Reidy tells Insurance Journal he sees more companies reconsidering their default stance that every worker, regardless of their role or safety risks, must be completely drug-free. “Employers are saying, `We have a thin labor pool, so are we going to test and exclude a whole group of people? Or can we assume some risks, as long as they’re not impaired at work? This is going to become the new ‘Don’t Ask, Don’t Tell.’”

Drug Testing: Employers Can Still Invade Privacy In Legal States was last modified: by
Kate Francis
About Kate Francis
Kate Francis is a journalist specializing in business reporting and politics. She lives in Los Angeles, where she divides her time between Lakers games, yoga, and avocado toast