Are Employer Drug-Testing Programs Obsolete?

Two experts debate the issue.

By Jim Reidy and Danna Hewick May 23, 2018
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Strict screening policies aren’t keeping up with the times.

Drug-testing policies, especially for marijuana use, are no longer in step with the realities of today’s workforce. 

While pot is still classified as an illegal substance under federal law, state governments continue to move toward legalizing or at least decriminalizing it. In fact, Maine prohibits employers from testing for marijuana at the pre-employment stage and from discharging an employee for an initial positive drug test. In other states where marijuana is legal, testing agencies have reported a significant decline in drug testing of job applicants, especially for marijuana, even though positive results for such screens are at an all-time high.

“We have just waved the white flag of surrender because of the proliferation of pot and our need to hire employees without any regard as to what they do on their own time,” one HR professional recently told me. Another sign of changing attitudes:  Support in the U.S. for marijuana legalization was at a record high of 64 percent last fall, according to a Gallup survey. Even U.S. Labor Secretary Alexander Acosta says employers should rethink drug testing for every job applicant, Politico reported in April.

Of course, such testing is still performed routinely—and appropriately—for workers in safety-sensitive positions, both before and during employment. (For example, the U.S. Department of Transportation requires testing of interstate truck drivers and certain others.) 

But otherwise, pre-employment drug tests are going the way of other once-popular, but now largely obsolete, prehire screening methods, such as those for weight, physical agility and English language skills. Facing an aging workforce, low unemployment and a strong economy, HR professionals and hiring managers are having difficulty filling positions and are thus removing any barriers that might exclude otherwise qualified people from the workplace.

In addition, many employers don’t see a return on investment when they weigh the costs of random and pre-employment testing against the results. They express concern that random screening can hurt morale and prompt applicants and employees to look elsewhere for work. Some states, including Colorado and New York, have actually made it illegal to discipline an employee for engaging in a legal activity outside of work hours. 

Another reason employers are increasingly reluctant to test for drugs is the potential legal challenges that could come with screening, including from employees claiming that organizations did not follow proper notice, testing or sample custody procedures. Those claims could involve disability, race or age discrimination, or invasion of privacy. 

Finally, business leaders who don’t want to put federal contracts or other funding in jeopardy are concerned that they’ll be caught up in a brewing legal battle over differences between federal and state law on marijuana.

In the past, some supervisors who suspected an employee of drug or alcohol abuse chose the path of least resistance by not testing or even mentioning their suspicions and instead conveniently including the worker in a reduction in force, or firing him or her for absenteeism, poor performance or safety infractions. Now, to avoid problems, more managers are focusing solely on job performance and shying away from optional drug screens. 

In short, drug testing, especially for marijuana, is declining—and over time screening for pot could go up in smoke.

Jim Reidy is an employment lawyer and shareholder in the Manchester, N.H., office of Sheehan Phinney Bass & Green PA. He is scheduled to speak at the SHRM 2018 Annual Conference & Exposition. 

These programs are still critical for workplace safety.

Employers have a responsibility to provide a safe workplace, free of potential accidents or violence caused by drug abuse. 

The legalization of marijuana in some states and the national opioid epidemic are having a dramatic and negative impact on the workplace. The statistics are alarming.

More U.S. workers tested positive for drugs in 2016 than in any year in the previous 12 years, according to an annual Quest Diagnostics Drug Testing Index released last year. Of almost 9 million urine tests conducted for U.S. employers, 4.2 percent were positive—the highest proportion since 2004, when it was 4.5 percent. 

Moreover, 7 in 10 employers were affected by prescription drug abuse, according to a 2017 National Safety Council survey. On-the-job overdoses from drug or alcohol abuse increased from 165 in 2015 to 217 in 2016, according to the U.S. Bureau of Labor Statistics.

Even when state laws permit marijuana use, business leaders can face legal liability if an employee who is under the influence causes an accident resulting in injury or death. The risk is greater if the company hasn’t done its due diligence by implementing a drug-prevention policy that includes testing. 

Some HR professionals mistakenly believe that the U.S. Occupational Safety and Health Administration regulations issued in late 2016 ban post-accident drug testing. In fact, the rule allows screening in situations where drug use was likely to have contributed to the incident and where the assessment can accurately show impairment.

A comprehensive policy that initiates drug testing when a job offer is extended, combined with random post-employment testing, may be most effective in preventing workplace injuries caused by employees under the influence. 

Substance abuse has serious economic consequences for society, costing more than $400 billion annually in crime, health and lost productivity, according to a 2016 Surgeon General’s report. In the workplace, it can lead to lost productivity and health problems for employees as well as increased cost and risk for the business. HR leaders should protect both the company and its employees with sound policies and procedures that are appropriate for the business. At my company, where 1,100 employees clean buildings late into the night, we take this responsibility very seriously. 

My organization has a drug-free workplace program, which includes pre-employment and other forms of testing. Such screening is required by many of the state and local government agencies that contract for our janitorial services. We make sure that applicants understand that their job offer is contingent on passing the assessment. Some choose to drop out before taking the test. It is one of a combination of programs and processes we use to keep both our employees and our clients safe.

Through solid research and an understanding of business needs, HR professionals can create progressive policies that make a difference, including those designed to create a drug-free environment. To determine the most effective way to screen, consider what is most appropriate for the specific jobs and industries and follow state law.

While drug testing may make it more difficult to find employees, the positive impact on the safety of your workforce and the business overall makes it worth the challenge.  

Danna Hewick, SHRM-SCP, is vice president of human resources at USSI Inc., a cleaning and janitorial services company based in Bethesda, Md. She is a member of the Society for Human Resource Management special expertise panel on HR disciplines.
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