It seems we’re destined to see the day when marijuana is removed from the controlled substances list—and it could come sooner than we think! The Marijuana Opportunity Reinvestment and Expungement (MORE) Act passed the House Judiciary Committee with a vote of 24 to 10 in November 2019. Supporters of the bill hope it passes through the Senate just as quickly because if the bill passes, it decriminalizes marijuana at the federal level.
In the meantime, even those vying for position as a presidential candidate are taking a stand on this hot topic.
With states already choosing to legalize the drug both medically and recreationally sans the federal government removing it from the controlled substances list, employers—and certainly their HR teams—are scrambling to keep up with laws surrounding marijuana and company drug testing.
Supporters of legalization want marijuana removed from company drug tests entirely. Of course, that’s due to the fact that current drug testing methods look for the THC metabolites left behind after the body processes the drug.
Moreover, the body tends to hold on to those metabolites long past the point of impairment.
- Mouth swab tests detect the drug minutes after eating or smoking it. Theoretically, they could detect current impairment. However, there’s no way to differentiate between catching you high or at some other point in the 24-hour detection period.
- Urine tests identify marijuana for up to 45 days if used daily. If used less frequently, there’s still a chance to test positive for a few days or even a few weeks after discontinuing use.
- Hair tests are becoming more popular. They create a record of any drug use going back for three months! Many employers are looking past the expense and taking a second look at this test for that very reason. However, it doesn’t solve the problem of testing for current impairment.
Protesters of continued marijuana testing are quick to throw out the fact that pre-employment tests shouldn’t be allowed because it infringes on their privacy.
Unfortunately, they’re making progress.
In fact, the State of Nevada rang in the New Year banning marijuana from pre-employment drug tests. The law took effect on January 1st. Furthermore, New York City decided to do the same; it begins enforcing the new law on May 10, 2020. They left carve-outs in place that allow for continued testing for those who will be employed in safety-sensitive positions.
However, it remains to be seen if restrictions regarding the safety-sensitive workforce remain in place if the MORE Act passes. Furthermore, there’s a possibility that we will see even more restrictions put on employers.
Sixteen states have specific laws in place protecting employees who use medical marijuana from discrimination.
Employers get it
Some employers admit that while it seems unfair to test for marijuana with no way to determine the person was high when they took the test, it’s better than nothing.
No matter where you’re located, until the U.S. government removes marijuana’s illegal status, employers can reason the “unfair” argument away by standing with them.
Of course, the main reason that employers drug test is for safety’s sake. If someone is high at work, their motor and thinking skills could be affected. That puts them at a higher risk of being in or causing an accident.
There’s a flip side to that coin
Not all employers view marijuana as a dangerous drug.
Some are choosing to remove marijuana from the company test. Stating, quite frankly, that it’s keeping them from hiring candidates who are otherwise qualified for the position.
They’ve obviously weighed the pros and cons of the safety issue in its entirety and did what they felt best for the company. Of course, employers regulated by the federal government are keeping policies in place to continue marijuana testing on their employees who fall under their jurisdiction. However, I’ll repeat that if marijuana’s legalized at the federal level, that may no longer be the case.
Either way, it’s important to stay abreast of the drug testing laws in your state until we see how it all plays out.
The end is in sight
There’s little doubt that having the capability to test for alcohol intoxication at the moment in time that the test is given revolutionized the industry. Treating marijuana legalization in the workplace the same way in which we deal with alcohol abuse would make everyone’s life easier—especially HR! A test for current impairment will make all the difference.
I have good news to share!
A company in northern California has been performing clinical trials on its marijuana breathalyzer since May 2017.
They’ve been working on the device for the last eight years. The first step was to begin working with the University of California in San Francisco to discover if marijuana is detected in the breath. As soon as scientific studies performed by the university confirmed that marijuana is detectable in the breath for approximately the same amount of time that someone is impaired, they got all over it.
The device is being used for clinical trials with excellent results. The marijuana breathalyzer is going to hit the market before this year is out!
Giving employers the capability of detecting current impairment should calm things down around the workplace where pot smokers are concerned.
I don’t know about you, but I’m waiting with bated breath!