Complex and changing issue

There are no statistics on how many people have been fired – or not hired – because of testing positive for marijuana use, but there’s no question that it is happening. “Marijuana in the workplace is a complex issue that will only require greater attention from employers as more states and countries decriminalise it, ” says Todd Simo, chief medical officer at California-based HireRight, which provides background-screening services to businesses. “A positive marijuana screen is now a yellow light, not a red light as in the past. ”

Marijuana use usually isn’t permitted in jobs that could pose safety risks, such as driving a bus or operating heavy machinery. What’s more, businesses with US government contracts are supposed to follow federal law and fire or refuse to hire people who test positive for marijuana and other drugs.

“The situation with marijuana is changing almost weekly, ” says Sarah Sullivan, risk control services coordinator at Lockton, a Missouri-based insurance broker and professional services firm. “The important thing is to protect yourself with a workplace policy that explicitly says whether you will or won’t be testing people. ”

Despite growing decriminalisation, many employers have failed to create a marijuana policy, let alone tailor it to different states and countries. Slightly more than half of respondents said they don’t have a policy, according to a 2016 HireRight study in the US. Nearly 40% said they don’t accommodate employees who use marijuana and have no plans to do so, while 5% said they do have a policy to accommodate marijuana use, and 5% said they may make accommodations within the next year.

Talent shortages are prompting some employers to skip pre-employment and random drug testing. Simo of HireRight notes that some Silicon Valley companies typically don’t screen for drugs because they know they would lose a large number of qualified applicants if they did. “But deciding whether to test is a delicate balance, especially in safety-conscious industries, ” he says.

In Colorado, which legalised recreational marijuana in 2012, some employers have begun to relax their drug testing policies. About 3% of employers surveyed recently by the Mountain States Employers Council said they have eliminated all marijuana testing, while 7% stopped pre-employment testing but retain it for other situations, such as reasonable suspicion of cannabis use.

“There was a spike in drug testing across the board in 2014 after marijuana started being sold, because employers feared their workforce was going to be impaired or have diminished capacity because of reefer madness, ” says Curtis Graves, information resource manager at the Mountain States Employers Council. “Two years later, however, that wasn’t borne out. ”

With lower unemployment rates in the US now, “some employers have to put up with marijuana use away from the workplace or risk not filling positions, ” he adds.

To avoid losing valuable talent, some human-resource consultants suggest that companies consider giving workers a second chance if they test positive for marijuana, namely that they agree to another test within the next year and realise they will be fired if the result is positive again.

While businesses may forgo pre-employment and random marijuana screening, many of them will still test people who show signs of impairment or reduced productivity. In such cases, some states require employers to provide proof of erratic behaviour, such as changes in speech or problems with dexterity, as well as a downward trend in performance.

But a workplace accident or deterioration in performance could be unrelated to marijuana, despite a positive test result. Marijuana is commonly screened-for a byproduct, the inert metabolite carboxy-THC, which may be detectable for weeks or even months after a person has stopped using.

Because of the potential for error and the fact that a positive test result isn’t indicative of either impairment or recent drug ingestion, the National Organization for the Reform of Marijuana Laws finds urine, blood and oral fluid tests discriminatory and a violation of an individual’s rights. It recommends performance impairment testing rather than bodily fluid screens. For example, NORML says, an app called My Canary can detect performance changes by assessing a person’s memory, reaction time and balance.

Most employers are reluctant to publicly discuss their drug testing policies. Jeff Hanle, a spokesman for Aspen Skiing Co., did say that the company has maintained the same policy since marijuana was legalised in Colorado: random pre-employment testing and required testing after a ski crash, slips on ice and other accidents.

Nearly all new hires in the US at CenturyLink, a Louisiana-based IT services firm, are subject to drug screens. In addition, the company conducts “reasonable suspicion testing of employees who appear to be impaired and random testing of those covered by US Department of Transportation and Federal Aviation Administration rules, ” Mark Molzen, a spokesman, says.

Multinational companies approached for comment declined interview requests. “It’s a perception thing, ” Graves says. “No one wants to be perceived as soft on drugs. Companies fear that if they publicly say they have relaxed drug testing, it makes them open to legal liability when an accident happens and the employee involved tests positive for marijuana, even if it was used weeks before. ”