Employers Grapple with Uptick in Cannabis Use and Worker Protections

​Businesses that still maintain workplace drug-testing policies may be struggling to comply with complex state and local cannabis laws while also finding that more workers are testing positive for marijuana.

Although all marijuana use is still illegal under federal law, many states have legalized medical and recreational use, and more states are adding workplace protections.   

As attitudes about cannabis change, more workers are failing drug screens. In 2021, positive drug tests soared to their highest level in two decades, according to Quest Diagnostics, which provides drug-screening services. Positivity rates for marijuana in the general U.S. workforce rose 8.3 percent (from 3.6 percent in 2020 to 3.9 percent in 2021). The 2021 number represents the highest positivity rate ever reported in Quest's drug-testing index.

Despite the uptick, many employers are hesitant to test workers as they struggle with staffing shortages. "Many employers have dropped THC from their pre-employment drug panels," observed Trisha Zulic, SHRM-SCP, director of human resources, business operations and strategy for WSA Distributing Inc. (via Efficient Edge) in San Diego. THC is the psychoactive component in cannabis.

Zulic noted that employers are working with their workers' compensation carriers and employment law attorneys to make the best decisions on their testing policies.

"There's no way around it. HR has to deal with this issue," said James Reidy, an attorney with Sheehan Phinney in Manchester, N.H. He was speaking at the SHRM Employment Law & Compliance Conference in Washington, D.C., on March 30.

Here are some tips for employers as they consider whether to keep or scrap their drug-testing programs.

Weigh the Pros and Cons

Reidy identified the following advantages to maintaining a workplace drug-testing program:

• Improving productivity and attendance.
• Maintaining a safe workplace and reducing workplace accidents.
• Ensuring public safety.
• Minimizing liability and reputational risk for the employer.
• Deterring continued drug use.
• Reducing health insurance costs.
• Reducing potential workplace violence.
• Identifying employees in need.

However, employers should also consider the following disadvantages:

• Privacy concerns.
• Potential false negatives and false positives.
• Testing that may not determine impairment or current drug use.
• Potential disability-discrimination claims.
• Potential missteps under state law.
• Adverse impact on recruitment and retention.

Reidy noted that employers historically could rely on marijuana's illegal status under federal law to maintain a zero-tolerance policy, but that's changing. Some states still allow such policies, but others are providing workplace protections for cannabis users—particularly registered medical marijuana patients.

"When an employer receives a positive test result for marijuana and the applicant or employee claims to be a medical marijuana user, the employer should avoid making any knee-jerk decisions," Jennifer Mora, an attorney with Seyfarth Shaw in Los Angeles, told SHRM Online.

Instead, she said, the employer should determine whether the state at issue provides employment protections to medical marijuana users and, if so, consider engaging in an interactive dialogue with the employee to determine what reasonable accommodations might be available short of allowing the employee to use or be impaired by medical marijuana at work.

Some states, such as New York and New Jersey, protect off-duty recreational use. Nevada prohibits employers from using positive pre-employment marijuana tests to make hiring decisions, and New York City and Philadelphia ban such tests altogether.

Employers should note that most laws that provide workplace protections have exceptions for safety-sensitive roles. But employers need to look at what truly is a safety-sensitive position, Reidy said. Using a stapler or handling hot coffee would likely not qualify, but operating machinery would.

Testing Based on Reasonable Suspicion

Pre-employment drug testing used to be the most popular type of drug testing among employers, Reidy said, but that's changing. More employers are dropping pre-employment tests to comply with state laws or to help with staffing issues. Instead, they are testing based on reasonable suspicion when workers exhibit behaviors that may indicate intoxication.

What are some attributes that might lead a manager to think a worker is high? Sleeping on the job, red eyes, slurred speech, odor of marijuana (though edibles and vape pens may not have an identifiable smell).

Reidy cautioned, however, that those attributes could also be signs of a medical condition. He recommended testing workers based on reasonable suspicion and checking their social media accounts, which may confirm cannabis use. The observed behaviors and reasons for sending the employee for drug screening should be thoroughly documented.

Multistate employers must comply with cannabis, drug-testing and disability-discrimination laws in each applicable location. "For now, you can still prohibit possession, use and being under the influence of marijuana at work," Reidy said. But check your state's law and consult legal counsel, he added.