Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing.

There's no doubt that attitudes are rapidly shifting in the United States from "just say no" to "live and let live."  A 2021 Gallup poll revealed that 68 percent of Americans now support legalizing marijuana[i].  This isn't just support for medical marijuana, but legalization of marijuana in general.  This maintains a record-high level reached in previous years in support of marijuana legalization.  No one wants to be the next viral story under the civil liberties spotlight. So understandably, some employers are choosing to drop marijuana testing from their drug-free workplace policies.  With the increased support nationally, some may still question, is drug testing for marijuana a good idea?  Are there pros to dropping marijuana?  And do they outweigh the cons?

The Perceived Pros of Dropping Marijuana Testing
The first supposed advantage to dropping marijuana testing is money.  Fewer tests mean fewer costs, right?  From the outside, this may seem a logical assumption.  In reality, it just isn't true.  Dropping marijuana from a drug testing panel means employers have to make special requests of laboratories and medical review officers to conduct testing but ignore marijuana results OR change to a modified panel that on average costs the same or more as a standard panel including marijuana.  Either way, an employer is paying the same cost as before or maybe even more, because there's very little difference in the panel that excludes marijuana.

The second advantage to dropping marijuana testing is privacy.  If marijuana is "legal" in more states than ever then an employer shouldn't really care if his or her employees are using it outside of work.  To inquire into a legal activity is an invasion of privacy, right?  To assume that employers have no business inquiring into employees' marijuana use because it's "legal" is like saying that employers shouldn't care about excessive and abusive alcohol consumption.  Just because an activity or substance is considered "legal" doesn't mean that it's safe or that an employer should turn a blind eye.  And as a side note, marijuana is still illegal at the federal level and most states with legalized marijuana still allow and encourage workplace drug testing!

Finally, a third pro towards dropping marijuana could be that as laws rapidly change, an employer does not have to keep up with the constant changes and updates to policy.  While possibly true, the cost of policy reviews and updates is generally nominal, while the cost of increased workers’ compensation claims could be ten times the cost to an employer for a single claim.  And, as far as legal liability goes, a strong and properly worded policy does not prevent employees from bringing frivolous lawsuits against you, it will limit your exposure to liability, possibly including the cost of litigation and the risk of negligent hiring claims and respondent superior cases that can be very expensive for employers.

The Cons of Dropping Marijuana Testing
The first con of dropping marijuana testing is that more drug abusing individuals will apply to work for your company.  This isn’t an assumption.  This is a documented fact.  A few years ago, JCB, a heavy-equipment manufacturer, held a job fair near Savannah, Georgia.  When the throng of potential employees learned that the next step of the application process would be a drug test, about half of them, 15 out of 30, left.[ii]  We cannot assume that all of them were drug users, we can safely assume that at least some of them were current drug users.  So, when you drop marijuana testing, you can be certain that more marijuana abusing individuals will apply to work for you.  Since you are no longer testing, some will inevitably get hired, bringing all the problems associated with marijuana impairment to your workplace.

Second, when an employer discontinues testing for marijuana, he or she will assume more costs, both hard and soft.  In a report issued just five years ago, the federal government estimated the overall cost of addressing substance abuse in America was $600 billion annually.[iii]  The annual estimated cost of drug abuse on businesses alone was $192 billion—$120 billion in lost productivity, $11 billion in healthcare costs, and $61 billion in criminal justice costs.[iv] 
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Over the last decade-plus, public opinion has shifted more in favor of legalizing marijuana, and teen and adult marijuana use has risen, especially in those states that have made the drug fully legal.  Additionally, the White House has published statistics online that show that current drug users:

• Are twice as likely as non-drug users to report working for three or more different employers in a one-year period (increased turnover).
• In the same period, current drug users are more likely to miss two or more workdays due to illness or injury (lost productivity).
• Full-time workers who are current drug users are twice as likely as non-drug users to skip one or more days of work in a month (lost productivity). 

That much turnover, sick leave, and absenteeism can cause a logistical nightmare for any sized company and make revenue and profits that much harder to secure.  When an employer stops testing for marijuana, more marijuana users will join the company.  As this happens, that company will experience increased costs associated with lost productivity, healthcare usage, and criminal justice.

Conclusion
Legalized marijuana is not going away, in fact, it is fair to assume it is going to continue to spread in the United States and globally.  The full cost of legalization is yet to be fully known, but based on what we know now, the cost to employers will be significant.  More people are using drugs than in the past 15 years and marijuana is fueling that increase. 
Employers in virtually all states have the right to test for any illicit drug, including marijuana.  Drug testing is not only smart for public safety and workplace safety, it is also fiscally responsible for employers. An updated drug testing policy, ongoing drug education based on science and statistical evidence, and continued pre- and post-employment drug testing programs work!


© 2010-2023 DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.


[i] Support for Legal Marijuana Holds at Record Hight of 68%, November 4, 2021, Retrieved from https://news.gallup.com/poll/356939/support-legal-marijuana-holds-record-high.aspx, January, 4,2023
[ii] Calmes, J. (May 17, 2016).  The New York Times.  Hiring Hurdle: Finding Workers Who Can Pass a Drug Test.  Retrieved from http://www.nytimes.com/2016/05/18/business/hiring-hurdle-finding-workers-who-can-pass-a-drug-test.html?_r=0
[iii] SAMHSA (July 26, 2016). Prevention of substance abuse and mental disorders. Retrieved from http://www.samhsa.gov/prevention
[iv] The White House (2016).  How Illicit Drug Use Affects Business and the Economy.  Retrieved from https://www.whitehouse.gov/ondcp/ondcp-fact-sheets/how-illicit-drug-use-affects-business-and-the-economy

This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.

From the Blue Ridge Mountains to the Atlantic coast, Georgia is a state made up of not only landscape diversity but diverse workplace needs.  So, it is no surprise that their drug testing laws allow for these workplace needs.  Employers who would like to benefit from the legal protection associated with drug testing, especially as it comes to workers’ compensation and unemployment compensation denial, can choose to participate in Georgia’s voluntary drug testing program.

Below are the five important things you need to know when considering drug testing in Georgia.
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1. Drug Testing Law Type: Voluntary. Georgia has a voluntary drug testing law. Companies that wish to qualify for a 7.5% discount on their workers’ compensation premiums must comply with this law; other companies are not mandated to comply.
2. Random Testing: Though an employer is not required to drug test an employee or job applicant, Georgia does not prohibit lawful testing, including random testing.
3. Workers’/Unemployment Compensation Denial: There are workers’ and unemployment compensation laws in Georgia that contain their own drug testing requirements. Employers are not required to comply unless they wish to deny workers’ or unemployment compensation claims.
4. Marijuana Laws: According to GA Code § 16-12-190[i], medical marijuana is permitted. However, nothing in the law requires employers to accommodate use of marijuana at work. The law even allows employers to prohibit on-duty and off-duty marijuana use.
5. How to Test: It is required that employers who choose to participate in the voluntary state program  follow the testing standards and procedures set forth in GA Code § 34-9-415 (2018)[ii].  This includes pre-employment, reasonable suspicion, post-accident, periodic exam, return-to-duty, random, and follow-up, and other forms of testing which are permitted. Employers who wish to test but do not want the worker’s compensation premium discount are not obligated to follow the same procedures.

© 2010-2023 DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.

[1] 2018 Georgia Code Title 16 - Crimes and Offenses Chapter 12 - Offenses Against Public Health and Morals Article 8 - Regulation of Low Thc Oil § 16-12-190. Definition. JUSTIA US Law. https://law.justia.com/codes/georgia/2018/title-16/chapter-12/article-8/section-16-12-190/. Retrieved January 18, 2023.
[1] 2018 Georgia Code Title 34 - Labor and Industrial Relations Chapter 9 - Workers' Compensation Article 11 - Drug-Free Workplace Programs § 34-9-415. Conduct of testing; types of tests; random testing; procedures for specimen collection and testing; laboratory qualifications, procedures, and reports; confirmation tests, JUSTIA US Law. https://law.justia.com/codes/georgia/2018/title-34/chapter-9/article-11/section-34-9-415/. Retrieved January 18, 2023.

Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing.
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The opioid crisis and legalization of marijuana have flooded the newswires with information on the cost of drug use and the complications it causes, both personally and professionally.  It has also led to questions and confusion – for example, who regulates employee drug testing?  The answer is not always black and white but understanding each of the different types of laws and regulations that apply helps make it easier.  
Employee drug testing is generally presumed to be lawful unless there is a specific restriction in a state or federal law. This article will emphasize some of the state requirements and how they apply to workplace drug testing. 

Many states have laws that regulate workplace drug testing and although state law is applicable only in that specific state, many employers operate in multiple states and therefore need to comply with the laws in all the states in which they do business. All state laws vary and there is no “one size fits all” rule that applies throughout the country. State law applies to business entities, corporations, organizations, or employees based in and/or operating in that state.   
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Before delving into each state and their specific laws it is critical for employers to understand the different types of state laws and how they affect testing programs. Employers who understand the requirements of state laws benefit by having a successful workplace drug testing program in addition to protections afforded by compliance with state laws. The following are different types of state laws and how they might affect your workplace drug testing program. 

Mandatory Requirements 
There are mandatory testing requirements that must be followed as required by a law or a rule for the city or state that has the statute or ordinance governing drug and/or alcohol testing. It must be followed by employers to comply with statutory testing requirements. Employers who test in states with “mandatory” laws are required to follow the state’s specific requirements noting, however, that some cities have their own specific laws (e.g., Boulder, CO and San Francisco, CA) and other mandatory state laws apply only to specific industries operating within that state (e.g., West Virginia Mining Industry).  
 
Workers’ Compensation Premium Reduction Requirements  
There are states that offer a discount on workers’ compensation premiums under the state’s workers’ compensation law. Employers may voluntarily comply with this statute to receive discounts offered by the state. Some states have specific testing requirements that must be followed to qualify for this benefit while others simply provide training and education but do not specifically dictate testing.  
 
Workers’ Compensation/Unemployment Compensation Denial Requirements 
Most states offer employers the ability to deny or reduce claims benefits to employees. In circumstances where an employee is injured and it is determined that drug use was a contributing factor to the injury, employers may deny workers’ compensation benefits. Similarly, employees who are discharged due to drug abuse in the workplace may be denied unemployment benefits. There may be specific testing requirements that must be followed to qualify for this benefit. Employers are not required to comply unless they wish to deny or reduce claims benefits to employees. 
 
Limited Protection Requirements  
There are a handful of states that have laws that offer benefits or protections to employers regarding drug and alcohol testing (e.g., rebuttable presumption that a test result is valid, limitation on actions for defamation or false positives, etc.). There may be specific testing requirements that must be followed to qualify for this benefit. Employers are not required to comply with the statute unless they wish to receive these benefits. 
 
Marijuana Requirements 
Many states have legalized marijuana, and that number continues to grow. Marijuana laws may require certain requirements as part of workplace testing and hiring decisions. Employers with testing programs in states with medical marijuana laws must follow state specific requirements. There are also states that have legalized recreational marijuana. In these states, recreational use and its impact on the workplace varies and will continue to be refined in case law. 
 
Case Law 
Case law is law established by judicial decisions in cases as distinguished from law created by legislation. 
There are many case laws that impact workplace drug testing. Whether there is an existing law, or no law established, a judge can interpret the law, which can be called precedent. Several states have case law in place of mandatory law, California is one of them, and for employers in those states it is critical that they understand case law and how it will apply to them as they develop their policies.  
 
Legal Liability (POCT) 
With the ease of point-of-collection testing (POCT) comes the precedent of legal liability. When collecting a rapid result urine sample, an employer must perform as the laboratory does in certain states (e.g., New York). This includes ensuring the sample was properly collected according to state/federal regulations, running the instant urine assay correctly, interpreting the test result, and ensuring a quality assurance and quality control program to safeguard the integrity of the devices used and the procedures followed. The outcomes of the test result may involve subsequent disciplinary action. The legal liability for a POCT is much greater than collecting a specimen and sending it off to a lab for analysis. There are far more processes open to potential error and mishandling. 
 
Conclusion 
For some employers, there may be no specific drug testing requirements to implement as part of the testing program.  However, laws change, and it is important to keep track of the laws that may affect your program. On the other hand, some employers may be required to follow multiple laws and must understand how they all come together. In all cases, it is essential that employers understand the nuances of the different laws that apply to their workplace.  Before proceeding with a workplace testing program, check for laws that might apply to you. 

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© 2010-2023 DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.