Overhauling Cannabis Workplace Drug Testing: The Shift to Fitness-for-Duty and Post-Hire Testing   

Overhauling Cannabis Workplace Drug Testing: The Shift to Fitness-for-Duty and Post-Hire Testing   

The zero-tolerance era is over; fair and equitable testing practices are the new norm. 

Most Americans now support cannabis legalization, but workplace drug testing has failed to keep pace with prevailing views and legal realities of cannabis drug testing. Policies and programs that narrowly define company actions for positive drug tests resulted in zero tolerance that is no longer feasible in the age of cannabis reform. But shifting laws and rising numbers of employees who use cannabis are impacting how employers will implement workplace drug testing in the future and when and how they will test. The result is a pivot toward fair and equitable cannabis testing practices and policies that utilize modern technologies.

 What Cannabis Positivity Rates Tell Us

Recent data estimate 14.8 million Americans use illegal drugs, and 70 percent of those users are employed. Cannabis is the most used drug in the United States, according to the CDC. These numbers could help explain why industry leaders are seeing a double-digit rise in cannabis positivity rates. Quest Diagnostics’ 2021 Drug Testing Index and Industry Insights report shows a significant increase in positive cannabis test results among oral fluid (35.2 percent), hair (22.5 percent) and urine (16.1 percent) tests.

However, conventional cannabis tests of oral fluid, hair and urine cannot provide the one critical piece of data employers need to make fair decisions—whether employees used cannabis recently and are, therefore, likely to be impaired. The window of peak impairment for cannabis lasts only a few hours after consuming but conventional cannabis tests can return positive results for days, weeks or even months after use.

“Simply put, current cannabis tests do not tell the whole story,” said Jaime Feinberg, Vice President of Partnerships for Insurance, Risk and Safety, at Hound Labs, Inc.

 Why Many of Those Positive Cannabis Tests Could be Negative

One of the fundamental issues with cannabis testing stems from the fact that positive results from oral fluid, hair and urine tests do not correlate with recent use and provide very little useful information now that most employees can legally use cannabis. While these tests may indicate an employee has consumed cannabis, they cannot tell employers when that use occurred. Testing policies and technology that remain anchored in the era of zero-tolerance can lead to instances of employees being terminated for a legal activity that has no bearing on performance and job safety if it was consumed outside of work hours.

“Current cannabis tests, and the way employers historically have used them, can cause problems for cannabis users,” Feinberg said. “Why should a cannabis user be disciplined for legal use when their situation can be like the person who has the occasional glass of wine (or two) to unwind, or someone who cracks open a cold beer after mowing the lawn?”

While workplace drug testing for cannabis continues to be essential to maintain safety and productivity, to deter use during work hours and to mitigate risk, it should and can be fair.

Shifting to Post-hire Testing

Pre-legalization, employers could test prior to employment and weed out candidates who tested positive for THC. Since the drug was illegal throughout the U.S., this process was effective in deterring cannabis users from applying to workplaces who drug tested. But with cannabis legal to use in many states, this practice is no longer simple to apply or enforce, leaving some employers tempted to remove cannabis from pre-employment drug screening.

However, eliminating cannabis testing altogether may not be an appropriate response for most employers because they still want and need to maintain safety. The proven effectiveness of drug testing as a risk mitigation and deterrence tool saves money and supports safety. Removing it will eliminate those benefits when considering the most used drug in the U.S. According to Quest, the cannabis positivity rate of post-accident test results grew faster than the rate for pre-employment testing. Employees expect safety, too, and trust their employer to maintain a safe workplace, free from preventable workplace incidents.

This suggests businesses may want to consider a nuance to their drug testing policy that provides all the benefits of pre-employment testing but accommodates legal, off-duty adult use of cannabis products. Testing all employees within a predetermined period after they join the company, and then throughout their tenure as outlined in a company’s drug testing program, provides a solution for many businesses. This policy balances a company’s use of drug testing as an important part of its risk mitigation strategy while accepting that more and more people can use cannabis legally during their personal time. Post-hire testing promotes safety because it detects and deters on-the-job use throughout a person’s employment continuum—not just before they start the job, when their use may have no impact on their work performance. It also promotes equity because a company tests all employees—not only employees in safety-sensitive or entry-level positions.

How to Test for Recent Use

Employers need a test that isolates recent use so that employees who used cannabis days, weeks or months before the test does not risk positive results. No employee should be at risk of adverse employment action based on legal cannabis use when off the job.

A cannabis breathalyzer is the ideal tool to use for post-hire testing because it provides on-location results, quickly giving a green light to most employees who will test negative because they did not use cannabis immediately before or while at work. Cannabis breath testing technology only identifies use within the last few hours when it may be relevant to job safety and performance. This means minimal stress, minimal lost work time and maximum fairness to employees who desire and deserve to keep their personal lives private.

If an employer fires an employee who responsibly and legally used cannabis, the action can be costly both to employees and their employers. The employee is denied a position or loses a job based on responsible legal use outside of the workplace, while the employer incurs the recruiting, training, litigation and other costs to replace a skilled employee. Estimates on the cost of replacing an employee can be $10,000 per employee or higher.

Changing Laws Requires Updated Drug Testing Policies

In an era when laws related to cannabis reform seem to shift weekly, overhauling cannabis workplace drug testing to include post-hire and cannabis breath testing is imperative if companies want to future-proof their operations, maintain safety and retain employees. A drug testing policy based on fairness and equity allows employers to continue to reap the safety and cost benefits while balancing off-the-job use. Utilizing the latest cannabis breath testing technology may help companies adapt more quickly to the swell of new cannabis laws on the horizon. 

This article originally appeared in the March 1, 2022 issue of Occupational Health & Safety.

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