Evaluating the Relevancy of Cannabis Testing

The U.S. is gradually destigmatizing marijuana as people realize its health benefits, non-lethal nature, and economic promise. Concurrently, activists seek to correct the injustices done to black and brown communities during the ongoing “War on Drugs” that began in the 1970s. This intersectionality has thankfully been emphasized by recent presidential candidates; unfortunately, there are others that lack a similar prominence. Nonfederal or non-safety specific employees are still vulnerable to and suffer from mandatory drug testing for THC, which has caused the unethical policing of employees in states where cannabis is legal. Drug testing has also led to instances of racial discrimination as seen by a poll administered by an affiliate of the American Addiction Centers known as Detox.net. In a survey of 1,500 American workers, African American and Multi-racial respondents were fired or reprimanded for failing a drug test at rates of 9.2% and 5.8% respectively, while Caucasian respondents suffered at a rate of 4.4%. The inconsistent regulations are alarming because they blur the line between our accepted business culture and workers’ rights, which will always affect people of color more harshly.

The Drug & Alcohol Testing Industry Association (DATIA) lists many instances in which a drug test is administered. Candidates far along the hiring process will often agree to pre-employment drug testing knowing that a positive result will cost them the offer. Employers can add this step in unannounced; however, some areas prevent them from doing so. They also cannot test for alcohol use at this stage because alcoholism is considered a “disability” and is thereby protected by the Americans with Disabilities Act of 1990. Another instance would be reasonable suspicion, in which employees would be tested if managers observed behaviors that indicated drug-induced impairment. Post-accident drug testing occurs after a significant incident to determine if drugs played a role. Periodic tests are routinely scheduled while random testing only involves a specific section of the staff.

Employees in non-federal and non-safety-oriented positions should not be subjected to pre-employment, random, and periodic testing for marijuana in states with legalized consumption. Employers should still be allowed to test in post-accident situations and cases of reasonable suspicion, so long as employees are informed about these policies, with the latter accompanied by a specific and universal protocol. The working-class should not face consequences for engaging in legal activities during their minimal free time, especially considering their exhausting full-time schedules. These ideas must be implemented into laws that shortly follow cannabis legalization at either the federal or state levels.

The Current State of Cannabis

Before the November 2020 election, Procon.org noted that medical marijuana was legal in 33 states and the District of Columbia, with 11 of them also allowing recreational use. Since then, USA Today reports that now 36 states are allowing medicinal use with 15 permitting recreational use. It remains federally illegal as the Drug Enforcement Administration (DEA) still classifies it as a Schedule 1 drug along with heroin and cocaine. Substances in this category are labeled as “highly addictive” and “provide minimal medical assistance.” According to NPR, this classification highly restricts and even discourages research on the substance and its active ingredients, which prevents its effects and potential benefits from being discovered.
Despite lingering in the bloodstream long after its effects wear off, THC can be grounds for termination or rejection in almost all the states with legalized recreational use. Only Nevada has outlawed the rejection of prospective non-safety-oriented employees based on positive marijuana test results. Along with this, Verisys Corporation also details that New Jersey and Oklahoma prohibited discrimination against medical marijuana patients in 2019, while New York City ceased mandatory marijuana tests for job applicants in May 2020 for those not in medical, federal, or safety and security-sensitive jobs.

The False Prophet: Canna-Testing

The DATIA states that companies test to ensure that employees are not using illegal drugs, to identify and aid workers who may suffer from substance abuse or addiction, and to maintain a safe work environment for employees and customers. Many also feel it is unfair to pay an inebriated employee the same wage as a sober employee. Proponents of this practice seek to prevent low productivity, poor morale, and the additional health care claim costs that drug and alcohol abuse have been linked to.

Unfortunately, drug testing causes employees to have low morale because, to them, being forcibly tested is an authoritarian action that leaves them powerless. For non-users, this feeling could stem from having to undergo an invasive and unnecessary procedure. Meanwhile, cannabis consumers fear punishment for a non-work activity. This feeling is valid because according to the DATIA, traces of THC linger in the body for 3-4 days for casual users and up to several weeks for frequent ones. Drug tests do not detect current use or impairment, thus calling into question the reason for its continued implementation in nonfederal and non-safety specific workplaces.

The American Civil Liberties Union (ACLU) disapproves of the current state of drug testing. They cite human error in labs that process the samples, the test’s inability to distinguish between legal and illegal substances, and false-positive outcomes as reasons to question the test’s validity, with the most indefensible reason being the last. They mention that in 1992, about 22 million tests were administered: if a conservative 5% of tests yielded false-positive results, then about 1.1 million people could have been wrongfully fired or denied jobs. In 2019, 5 to 10 percent of tests yielded false-positive results in the U.S., which for cannabinoid tests, can be attributed to non-steroidal anti-inflammatory drugs such as ibuprofen, hemp seed oil which exists in anti-aging products, HIV medication, and other drugs approved by the FDA.

Employers are correct for seeking to quickly identify drug abusers; however, their current efforts will most likely exacerbate the issue. Pressuring employees with mandatory testing will not stop addiction and instead will add to their stress. According to the workplace training company known as Lion Technology Inc., subjecting substance-abusing employees to drug tests could lead them to manipulate their test samples, which permits them to continue their unhealthy behaviors; the opposite of what is desired. If they failed the test and were fired, they could end up homeless. On the company side, losing staff is harmful because valuable time will be wasted in hiring and training new members. Taking this path will contradict any dedications made to ensuring employee wellness, which could diminish workplace morale. It should be noted that there are employers that will send employees to get help and later welcomed back, which is a practice I support.

The Double-Edged Sword of Cannabis Testing

Mandatory drug testing, at least for cannabis, harms employees, employers, and applicants. The ACLU considers workplace drug testing to be invasive on two levels. The first involves being required to disrobe and urinate under supervision in a bathroom without its water supply, all of which to ensure there is no “specimen tampering.” The organization received a letter from a worker who underwent this process. Part of it reads, “I waited for the attendant to turn her back before pulling down my pants, but she told me she had to watch everything I did. I am a 40-year-old mother of three: nothing I have ever done in my life equals or deserves the humiliation, degradation, and mortification I felt.”

The second intrusion occurs while the sample is at the lab because urinalysis reveals “the presence of illegal drugs… [and] other physical and medical conditions, including genetic predisposition to disease – or pregnancy.” Medical information should only be shared between patients and their physicians as its exposure could lead to discrimination and humiliation. The ACLU believes that no one should suffer like the women of the Washington D.C. Police Department, because in 1988, it was revealed that urine samples gathered from drug tests were used to screen “employees for pregnancy – without their knowledge or consent.” According to the DATIA, employers become privy to test results after workers sign a release. It can be inferred that workers are forced to sign this because it is a part of the required test.

Some employers realize they lose valuable time, staff, and potential recruits due to mandatory marijuana testing. The New York Times featured a corporate lawyer named Sheehan Phinney, who believes employers are “desperate” to find talent due to a low employment rate that worsened due to the COVID-19 outbreak. He also believes that “rigid drug and alcohol policies” resulted in “losing out on qualified candidates.” They also highlight Caesars Entertainment, one of Nevada’s largest casino companies, having ceased testing candidates, as they found it to be “counterproductive” and lost potential employees. Even Apple stopped testing workers who were not in positions that pose safety risks. These companies are effectively adapting to the growing irrelevance of THC testing.

Applicants frequently hit a dead-end once a drug test is brought up. Kimberly Cue, a 44-year-old woman interviewed by the New York Times, revealed that an offer from Silicon Valley as a “medical device manufacturer [was] rescinded when the company found out that she smoked prescription marijuana to treat post-traumatic stress disorder.” As a result, she “lost confidence in the process [and feels she] should [have] been able to be upfront and honest with [her] employer” after activating her new company email and printing business cards. An applicant for a receptionist position named Nicole Perez also revealed to the news outlet that she was immediately denied after sharing her cannabis usage. This occurred in Fresno, CA, which is alarming considering California was the first state to legalize medical marijuana and has legalized recreational use.

Eliminating this unethical policing of workers will allow employees and applicants to maintain privacy while avoiding an obsolete and intrusive practice, which will raise morale and lead to higher productivity. Employers will also save time and not miss out on outstanding new talent.

Time for Action

The 1989 Skinner v. The Railway Labor Executives’ Association Supreme Court decision ruled that drug and alcohol tests were reasonable under the 4th amendment, which protects an individual’s right to not be seized or searched without warrants. This decision ruled in favor of the defendant, thereby justifying the termination of the plaintiff, Samuel K. Skinner, who failed several drug tests at a railroad company that had been experiencing several crashes. Federal jobs and those involved with the safety of others should continue to abide by this ruling by continuing existing drug testing policies. This would include first responders, medical workers, heavy machine operators, transportation personnel, and construction workers.

For other fields in the private sector, an employer should administer a marijuana test due to reasonable suspicion or an accident. This method more accurately indicates who is under the influence at work and upholds employees’ rights to decency, medical privacy, and legal cannabis consumption. For states that only allow medical marijuana, patients with valid medical cards should be registered in a system that absolves them from the consequences of failing a workplace THC test.

States with legalized recreational usage should have legislation that permits cannabis testing solely under the above circumstances. This must include a rigid training program that employers must attend so they could accurately detect signs of employees under the influence, as well as racial sensitivity training to prevent racial profiling and discrimination. Companies would determine the consequences of failing a drug test. Despite feeling that the first offense should always be a warning, it should ultimately be left for the company to decide. Employers should foster an environment where suspected abusers feel safe enough to come forward and ask for help. There should be programs such as performance improvement plans and employee assistance programs that help them get back on the right path. As more areas move towards legalization in any form, these measures should be implemented.

Conclusion

Sadly, cannabis remains federally illegal despite Pew Research revealing that two-thirds of Americans support its legalization, with only 32% opposing it. The government needs to accurately represent society by adjusting outdated laws either through removal or updating. Nationally legalizing cannabis will be the first step towards correcting the devastation caused by the “War on Drugs.” As this happens, marijuana testing policies must evolve considering that applicants, employees, and employers are currently suffering. No one should face repercussions for being an active user of a non-lethal and legal substance, so long as they indulge responsibly on their own time. Although inconsistencies in our current laws contradict the will of the people, advancements can always be made.