Drug testing for employment screening is undergoing some changes, particularly, testing for cannabis.
Drug screening for employment used to be fairly rare outside of mandated Federal testing such as that required by the Department of Transport and other Federal jobs.
Private employers, without a mandate followed for safety sensitive positions and the issue of negligent hiring caused greater use.
In fact, employers used drug screening for two purposes, one obvious and the other more nuanced.
- Employers tested for illegal drugs to avoid those applicants with a propensity to be impaired. For pre-employment screening, screening managers sometimes referred to pre-employment tests as quasi-I.Q. tests—the applicant was dumb to do drugs prior to taking the test. The other possibility is that the applicant was aware they would be tested, but couldn’t stay away long enough to test negative. Dumb or hooked is not what employers are looking for.
- The not so obvious reason for testing was to determine if their applicants were law breakers. If you test for illegal drugs and they have illegal drug indicators, they have broken the law, the lack of a conviction record notwithstanding.
Times are changing. There is increasing legalization of drug use, particularly cannabis. In some places this legalization is for medical purposes and individuals can get a “medical card” that authorizes their use for therapeutic reasons (though it is generally known that the application for these cards does not entail Torquemada Inquisition -type screening procedures.) In some locales, recreational use is allowed.
So where are we headed? We do not think that drug testing will end, even for cannabis. If one of your workers causes an accident and is impaired, you can practice saying “but marijuana is legal” all day long in front of a mirror and still sound silly in court. However, and that said, the focus of the testing will be to test for impairment rather than use.
An example of where we may be headed are recent California and Washington laws.
Employers are allowed to drug test employees and/or applicants as long as the test does not screen for inactive cannabis use detecting non-psychoactive cannabis metabolites. This will eliminate urine and hair testing for marijuana but alternative methods such as oral fluid testing and breath testing for marijuana will be lawful.
Urine and hair testing can indicate usage for weeks or months. Oral fluid and breath testing has a much more recent window. When a police officer gives a driver a breath test for alcohol, they are looking for current blood alcohol content—not whether the driver had 4 beers three weeks ago. With the laws changing to legalize cannabis, jurisdictions are trying to follow this reasoning,
To sum up, we don’t see drug testing going away. You might notice that with legalization legislative efforts, there are no corresponding indemnifications for employers who hire workers who cause problems and are impaired with the drugs they are legalizing. You may also notice that many of these prohibitions don’t apply to certain government agnecies or regulated companies. (These prohibitions are good fro thee, but nor for me).
We do see employers increasingly restricted to using drug tests that indicate impairment (or implied impairment) rather than use.
