Seyfarth Synopsis: Across nationwide testing, marijuana positivity rates for 2022 reached 4.3% (up from 2.7% in 2017), with biggest gains found in states that legalized recreational marijuana.

Impairment and related safety hazards have been disrupting the workplace resulting in lost time, absenteeism, safety hazards, and serious industrial accidents. We track annual positivity test reports from Quest Diagnostics, one of the country’s largest drug testing laboratories. Quest’s recently released 2023 Drug Testing Index reveals that while positivity rates for some drugs declined, the rise in positivity rates for marijuana and amphetamine continues to climb. Of the more than six million general workforce marijuana tests that Quest performed in 2022, 4.3% came back positive, up from 3.9% the prior year. Worse still, post-accident marijuana positivity of urine drug tests in the general U.S. workforce was 7.3%, an increase of 9% compared to 6.7% in 2021. While not entirely clear, it is possible that the widespread state legalization of marijuana has contributed to an increase in test positivity and also workplace safety hazards.

Scientific testing indicates greater likelihood of errors in judgment and workplace accidents where an employee is impaired by marijuana. A National Safety Council white paper continues to recommend a Zero Tolerance Policy for marijuana in safety-sensitive positions. Federal OSHA further advocates for post-accident drug testing as a legitimate part of a root cause analysis to determine the cause of an accident. Employers have struggled to address the hazard of marijuana impairment at work and how best to protect workplace safety.

A problem for employers is that none of the scientifically valid drug tests for marijuana definitively prove whether a person is impaired at or near the time of an accident or the time they provide a specimen for testing. Moreover, state and local marijuana laws are making it increasingly difficult for employers to even consider or act on a positive marijuana test result. Accordingly, employers looking to address drugs and alcohol in the workplace should work with outside counsel to ensure compliance with their current drug and alcohol testing programs.

We have blogged previously on his topic. See for instance Method and Madness Behind New California and Washington Cannabis Laws; New Jersey Recreational Marijuana Law Provides Significant Employment Protections to Marijuana Users; And the Winner of the 2020 Election Is…Marijuana!; National Safety Council Endorses Zero Tolerance Prohibition on Cannabis/Marijuana for Safety-Sensitive Employees; Illinois Marijuana Legislation Update: Senate Bill Would Protect Employers’ Rights; Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment; Beware: Marijuana Businesses Targeted With Product Labeling Violation Letters; Marijuana Farm Employees Face Numerous Health Hazards; and New Jersey Cannabis Regulatory Commission Issues Guidance on “Workplace Impairment” Determinations.