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]
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:
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!
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[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
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