Nearly 60% of the U.S. population lives in a state with some form of legal cannabis, and eight states plus the District of Columbia have legalized cannabis for adult use. Despite this impressive progress, however, so far the issue of employer drug testing continues to be unaddressed from a state or federal level.
For employees who work for a federally regulated company, whether cannabis is legal within the state is not the point; rather, many companies operating in these legal states still require drug testing prior to being hired, as well as regular drug testing throughout employment. This policy is particularly widespread among Fortune 500 companies, and it has started appearing in state legislatures as a requirement for unemployment benefit elibility. Even the FBI and CIA have struggled to find qualified candidates that can pass a drug test, with former director James Comey finally advising candidates to apply even if they are cannabis consumers.
No Exceptions for Colorado
62% of Colorado companies still require drug tests, and 94% of those companies still test for cannabis.
In Colorado, the state with the longest-running and most robust legal cannabis industry, seven percent of local businesses dropped cannabis from their pre-employment drug tests, and three percent removed it from their drug tests entirely, according to a 2016 survey from the Mountain States Employers Council. However, that doesn’t mean that living and working in Colorado gives you a free pass on cannabis use. The study also shows that 62% of Colorado companies still require drug tests, and 94% of those companies still test for cannabis. Additionally, if you’re found to have THC in your system, 49% will terminate you immediately.
A landmark case in Colorado made waves when a paraplegic worker, Brandon Coats, was fired from his job at Dish Satellite Network for consuming cannabis during his off-duty hours to ease muscle spasms. The Colorado Supreme Court ruled that Dish Network was within its rights to fire him because marijuana is illegal under federal law and the company must conduct business under the same federal regulations.
Protecting Workers for Off-Duty Cannabis Use
In Oregon, Senate Bill 301 was introduced during the 2017 legislative session in an effort to protect workers from being fired for off-duty cannabis use. The bill would have expanded on a similar measure to prevent employers from firing workers for using any substance that is legal in Oregon, so long as it is only consumed in off-duty hours and does not affect the employee’s productivity. Ultimately, the bill died in the Senate, but its introduction is in clear alignment with the increasing acceptance of cannabis in mainstream society.
There are very few states that offer protections for workers caught using cannabis, even for medicinal reasons.
There are very few states that offer protections for workers caught using cannabis, even for medicinal reasons and even if they are not consuming during work hours. Arizona, Delaware, and Minnesota are currently the only states that offer limited protections for law-abiding medical marijuana patients, but in cases that challenged the law, more often than not, the courts sided with employers.
For those living in states where cannabis is still penalized, the situation can be even more dire. In Wyoming and Wisconsin, officials have been drug testing citizens applying for unemployment benefits. Other states have already mandated such measures, but the cost has clearly outweighed the benefits. ThinkProgress gathered data from seven states that require drug testing for government assistance and found that state governments collectively spent nearly $1 million for the tests, but fewer than 1% of the total welfare applicants tested positive.
Drug Test Costs vs. Benefits
On average, employer drug tests cost between $30 and $50 per test, and with approximately 40 to 50 million workplace drug tests being conducted each year, the costs add up to more than $1.5 billion annually for the biomedical industry. But do these tests save employers cash in the long term?
With at least 25% of applicants failing drug tests, participation in the workforce is declining and small, rural economies are feeling the strain.
The pros of implementing a drug-free workplace can include insurance discounts as well as a decrease of drug-related insurance claims. In certain industries that involve safety-sensitive positions where employees are often operating heavy equipment, such as manufacturing plants or construction, the risks of having drugs in an employee’s system are more evident. These risks, however, very much depend on the type of drug being ingested.
A recent article from the New York Times highlights a blue-collar county in Ohio where nearly half of all job applicants fail prospective employers’ required drug tests and lose the opportunity for employment. Mandatory pre-employment drug testing is also a deterrent for would-be applicants, as they’d rather not take the risk and opt to apply elsewhere instead. With at least 25% of applicants failing drug tests, participation in the workforce is declining and small, rural economies are feeling the strain.
Alan B. Kreuger, former chairman of the Council of Economic Advisers, published a report on the subject last year, noting the decline of labor force participation is at a 40-year low. The paper found that nearly half of all men between the ages of 25 and 54 take pain medication of some kind every day. Does this indicate a problem with pain or a problem with opiates? More than likely, both.
Ohio is the main stage for a lawsuit filed against five pharmaceutical drug companies that may be contributing to the overabundance of prescribed opioids and the ensuing decline of eligible, drug-free workers. Insys, the makers of the powerful opiate Fentanyl, is also facing a major lawsuit for allegedly offering kickbacks to physicians for prescribing the addictive drug.
In the opioid epidemic, Ohio has been hit the hardest by overdose deaths. A reported 3,050 people died of opioid overdoses in 2015, and estimates show that the number of deaths rose by at least 30 percent in 2016.
The Opioid Epidemic
There’s a clear contrast between testing positive for cannabis versus testing positive for opiates. With no way for an employer to know whether an applicant used cannabis hours ago or weeks ago, because THC metabolites may remain in one’s system for weeks after use, many potential employers will tell the applicant to come back when they’re clean.
Opiates, however, leave the body within hours of ingestion. Saliva tests will only be able to detect heroin for the first 5-6 hours after the last dose, and urine tests generally detect opiates for 2-7 days after use. In order to test positive for opioids, an individual must be a regular or near-daily user, whereas he or she would have only needed to smoke cannabis once in the past month to fail a drug test.
For employers, especially small businesses, the declining workforce is not the only major financial impact. Opioids have proven to be highly addictive compared to cannabis, and drug treatment is often the only course of action. The cost of drug treatment can impact not just employees and their dependents, but the employers that provide health coverage as well. The aforementioned New York Times piece cites a company that has paid hundreds of thousands of dollars in opioid drug treatment program costs for addicted employees and their dependents who are covered under the company’s healthcare program. Rehabilitations costs can range from $1,000 to $60,000 per person, with no guarantee of full recovery.
For those who deal with chronic, debilitating pain, cannabis has been proven to be analgesic and can effectively relieve suffering without many of the side effects and addiction potential of opioids. Cannabis has also been proven to significantly reduce the use of opioids by 64% on average, decreasing withdrawal symptoms while offering pain relief. While employer-mandated drug tests are unlikely to disappear any time soon, there are a number of valid reasons to seriously reconsider whether it’s worth the time and cost to test for cannabis alongside other, arguably more harmful substances. The future of America’s workplace could, in the long run, depend on drug testing reform.