To Drug Test or Not to Drug Test?

This is the question faced by employers in states where cannabis is legal.
To Drug Test or Not to Drug Test?
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If you own a company in a state where cannabis is legal, do you still require your employees to take a drug test that searches for it?

This is the new dilemma facing employers in 29 states, which have legalized the medical or recreational use of cannabis. 

Drug testing for marijuana--as well as other drugs--has been a staple of the American workplace for decades. However, many are now questioning the wisdom of cannabis on the list of tested drugs.

Now government officials are starting to look into it.

Related: 10 Ways the Cannabis Industry Is Rebranding to Meet Its Biggest Challenges

Rethinking Drug Testing

In testimony before Congress earlier this year, Labor Secretary Alex Acosta said that many companies have valid reasons for testing for marijuana, such as safety issues involved in the workplace.

However, in other cases, he said that employers “are not well informed about an individual's skills and make the assumption that because there's a negative result on a test they would not be a good employee or they would impose a risk."

His remarks, coupled with President Donald Trump’s comment that he will “probably” support legislation that would officially make marijuana a state issue, has some rethinking how they should approach drug testing in the workplace.

Related: Branding Your Business and Crafting Your Story in the Cannabis Industry

Massachusetts Facing Issue

Massachusetts, where legal adult-use marijuana sales are set to start in July, is one of the areas of the country that is facing the issue for the first time. Employment attorney, David Robinson, told the Boston Globe that “We’re stuck at the frontier of employment law. No matter what you do, you’re at peril of someone challenging it.” In other words, you're damned if you test, and damned if you don't. 

Here's why:

  • If a person is tested for marijuana use in a state where it’s legal, they could take their employer to court.
  • If businesses do stop testing for marijuana, they technically could be violating federal law because marijuana remains illegal at the federal level.
  • There’s also a chance that someone is using marijuana to treat a medical condition - which opens up yet another issue in how it can be tested

Related: Will President Trump Really Support States' Rights On Marijuana?

Possible Solutions

In Massachusetts and other states where marijuana is legal, some employers have decided to treat cannabis like they would a bottle of beer. Do it on your own time, but don’t bring it to the workplace.

That’s a nice, commonsense solution that might work for, say, an insurance office. But what about people who run machinery and still must be tested? Marijuana can stay in the bloodstream for days, meaning that even if someone used cannabis “on their own time” on a Saturday night, it could be in their bloodstream on Tuesday.

There’s also this: With a tight job market, many employees could simply leave a company that tests for marijuana for one that doesn’t.

Against this confusing backdrop, the number of positive results from drugs tests have climbed even as more companies have stopped testing for marijuana, according to the Globe.

Damned if you test, damned if you don't.

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