Incremental "tweaks" might be the best course for employers.
According to an article in Bloomberg BNA's Daily Labor Report (paid subscription required to access), employers are beginning to scale back their drug testing programs -- especially employers in states that have legalized marijuana use.
In one study cited in the article, the percentage of Colorado employers who tested for illegal drugs declined from 77 percent in 2014 to 62 percent in 2017, after that state legalized marijuana use.
Another reason for the decrease in drug testing is the tight labor market, according to the DLR article. According to an employment lawyer quoted in the article, "Employers are really strapped and saying 'We're going to forgive certain things.'" Drug testing has also reportedly made it hard for employers to employ workers in areas affected by the opioid crisis.
Finally, the article cited Gallup polls showing that Americans in general have become more tolerant of drug use and favor legalization of marijuana. In 1969, only 12 percent of those polled favored legalization of marijuana. In October 2017, that percentage had skyrocketed to 64 percent.
But before you toss your drug testing program, a few caveats are in order:
No. 1: Drug use -- even if it's legal -- can impair an employee's ability to perform work that is safety-sensitive, such as operating machinery. (And "operating machinery" includes driving a car.) Even if you scale back your drug testing, continue to test applicants for and employees in safety-sensitive positions.
No. 2: Federal law, and our current Attorney General, continue to take a hard line on illegal drugs. Marijuana is still an illegal drug under federal law.
No. 3: For many jobs, of course, drug testing is required by law. This would include jobs subject to U.S. Department of Transportation or Federal Aviation Administration requirements, among others.
No. 4: Depending on which state you're in, you may get a significant discount on your workers' compensation premiums if you maintain a "drug-free workplace."
No. 5: Rather than throwing the "drug testing baby" out with the bathwater, consider keeping your program with some modifications. Here are some alternatives to dispensing with drug testing entirely: (1) limit your drug testing to safety-sensitive jobs, (2) eliminate marijuana testing if you're in a "legal marijuana" state and don't care about prohibiting marijuana use in jobs where it isn't governed by federal law, but continue to test for other drugs, (3) continue to test for all Schedule 1 drugs but make reasonable accommodations for any applicants or employees who use marijuana for medical reasons or who are addicted to or dependent on opioids, and/or (4) have a robust employee assistance program that puts more emphasis on rehabilitation than termination (but leave yourself a little room to terminate in appropriate cases).
No. 6: Whatever you do, don't abandon the following, whether the job is safety-sensitive or not: Post-accident testing, testing for "cause" (such as an employee who shows up for work in an apparent impaired state), or any drug testing that is required by law or recommended in standards that apply to your industry or profession.