Is Removing Marijuana From Your Drug Testing Panel a New Trend?

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Amazon, one of the largest and most successful companies in the world, arguably just became a great place to land a job if you’re a drug user.

On June 1, 2021, Amazon announced that it will no longer drug test as many applicants and employees for marijuana.[i] Additionally, the company stated that it will be using its considerable influence to convince congressional lawmakers to legalize marijuana federally. Amazon is the latest large company to drop marijuana from their testing panel – companies such as AutoNation made the decision a number of years ago and it’s likely that other companies have enacted similar measures without making public announcements.[ii]

Only time will tell what impact removing marijuana from a drug test panel will have generally and on any specific company. However, this much we already know: employees under the influence of marijuana at work are less productive and more prone to causing accidents, filing workers’ compensation claims and more likely to be absent from work.[iii] In other words, marijuana users are more expensive to employ than their non-marijuana using co-workers.

So, let’s clarify three critical questions:

• Are employers eliminating all testing for marijuana? Typically, no. In fact, much of what most companies are eliminating is pre-employment testing for marijuana. Post-hire testing following incidents or testing of those in safety-sensitive positions typically continues, including at Amazon.
• Are employers challenging the U.S. Department of Transportation’s (DOT) regulations that require employers in various transportation industries to drug test for several substances, including marijuana? Of course not. Across the U.S., covered employers that have dropped marijuana for non-DOT testing continue to comply with DOT requirements for pre-employment and post-hire testing for marijuana.
• Why are some employers supporting efforts to get the federal government to legalize marijuana? Good question. We would not presume to speak for such employers, but we know from various reports that some employers are complaining that the legalization of marijuana is making it more difficult to find people to hire.[iv] In other words, more people are failing their pre-employment drug tests.[v] We also know that some states that have legalized marijuana have placed restrictions on what employers can do when an applicant or employee tests positive for marijuana, often requiring employers to prove the individual was impaired and not simply positive on a drug test. A recent-use detection drug testing method like oral fluid testing, which has been endorsed by the federal government, can help with this.

Ultimately, we can safely predict the following about employers that choose to drop marijuana from their testing panel:

1. They will have less trouble finding people to hire because they will, in many instances, no longer screen out marijuana-using job applicants.
2. The company will likely see a negative impact on the safety and security of its workplaces. There’s no way around that fact. Less accountability will lead to more marijuana users on the payroll, more people high on the job, with all the well-documented consequences of such a scenario.[vi]
3. Some employers may choose to eventually re-instate pre-employment testing for marijuana.

In a 2021 survey of employers conducted by the Current Consulting Group, 47.6% indicated they were concerned about the legalization of marijuana’s impact on safety in the workplace and 32.2% indicated they were at least a little concerned about safety.[vii] That is nearly 80% who, probably on a regular basis, are dealing with problems related to employees being at work under the influence of marijuana.

Only 9% of respondents in the same survey indicated they were considering removing marijuana from their drug test panel in the next 12 months. And of that group, 12.5% said it was because testing for marijuana was not permitted in their states, which is not true. In reality, workplace testing for marijuana is legal in virtually every state, though New York’s Department of Labor has issued regulations that make testing for marijuana almost impossible in the Empire State. There may be conditions that must be met and pre-employment testing for marijuana may be limited to certain safety-sensitive occupations in some jurisdictions but testing for marijuana is still permitted in most places.

Employers who choose to eliminate marijuana from their testing panels may want to consider adding to their panel in other areas, such as adding an expanded opiate panel. For years opioid use has been on the rise, causing 81,000 drug overdose deaths in 2020.[viii]

Increasingly, local lawmakers are shifting laws from more traditional, employer-focused laws to laws that instead choose to offer greater protections to drug-using workers. Philadelphia, for example, has passed a city ordinance that severely limits an employer’s right to conduct pre-employment testing for marijuana. Philly’s ordinance includes a safety-sensitive carve-out for certain positions that employers can and should continue testing applicants for marijuana.

Nevada has a similar law that limits the actions an employer can take based on a positive pre-employment test for marijuana. AB 132, passed in 2019, prohibits employers from failing or refusing to hire prospective employees because of a drug test indicating the presence of marijuana metabolites. Employers can continue pre-employment marijuana testing – it is only the possible actions based on a marijuana positive test that are prohibited in certain circumstances. Nevada’s law also includes a safety-sensitive carve-out.

Misinformation is a common problem throughout the country when it comes to the legalization of marijuana. If a company is considering removing marijuana from its drug test panel, consider these reasons to continue testing for marijuana:

• Legalizing marijuana has led to more people smoking marijuana. There has been a dramatic increase in marijuana use as the legalization of the drug spreads across the country. In 2020, the federal government reported that the percentage of Americans 12 and older who admitted to using marijuana in the past year increased from 15.9% in 2019 to 17.9% in 2021.[ix] That’s what statisticians refer to as a “statistically significant” increase. Additionally, marijuana is the most commonly used addictive drug after tobacco and alcohol.[x]
• Legalizing marijuana has led to more employees and applicants testing positive for marijuana. One major drug testing laboratory reported in 2022: “Positivity rates for marijuana in the general US workforce based on more than 6 million urine tests continued an upward climb, increasing 8.3% (3.6% in 2020 versus 3.9% in 2021), the highest positivity rate ever reported in the Drug Testing Index (DTI). Over 5 years, positivity for marijuana in the general US workforce increased 50% (2.6% in 2017 versus 3.9% in 2021).”[xi]
• Legalizing marijuana has led to more traffic accidents and drug-related fatalities. Various reports show that an increase in marijuana-related traffic fatalities, for example, corresponds directly with the legalization of marijuana in a state. For instance, “The latest AAA Foundation research found that between 2008 and 2012 – the five-year period before the drug was legal – an estimated 8.8% of Washington drivers involved in fatal crashes were positive for THC. That rate rose to 18% between 2013 and 2017.”[xii]

Additionally, an estimated 65% of all workplace accidents and 38-50% of all workers’ compensation claims are due to drug and alcohol use, including marijuana.[xiii]

More marijuana usage. More workers testing positive. More accidents. More fatalities. Also consider the fate of alcohol in the U.S. Although a federally legal substance, society still recognizes that alcohol use has an impairing effect and can result in significant safety hazards. Because of this, employers are still required to test for alcohol use in specific instances, regardless of the legal status of alcohol use.

Marijuana, similarly, although legal in many states, has an impairing effect on users and can result in significant safety hazards. Each employee with an untreated substance use disorder costs an employer an average of $8,817 annually – continued testing for marijuana can help reduce these costs while protecting safety.[xiv] And screening applicants for marijuana can help employers fill vacancies with the best possible applicants and not just anybody.

Learn about the latest trends in drug testing and why you should continue testing for pot in the workplace.

Resources

[i] Clark, Dave. “Update on Our Vision to Be Earth’s Best Employer and Earth’s Safest Place to Work.” Amazon, Amazon, 1 June 2021, www.aboutamazon.com/news/operations/update-on-our-vision-to-be-earths-best-employer-and-earths-safest-place-to-work.

[ii] “Urine Luck: More Companies Removing Marijuana from Pre-Employment Drug Tests.” Pot.com, 25 Nov. 2019, www.pot.com/companies-removing-marijuana-from-employment-drug-tests/.

[iii] “Marijuana at Work: What Employers Need to Know.” National Safety Council, National Safety Council, www.nsc.org/membership/training-tools/best-practices/marijuana-at-work.

[iv] Zaleski, Sharon. “Marijuana Legalization Laws Make It Difficult for Some Employers to Find Qualified Candidates.” IntelliCorp, Cisive, 3 Nov. 2016, www.intellicorp.net/marketing/Resources/Blog/November-2016/Marijuana-Legalization-Laws-Make-It-Difficult-for.

[v] “Marijuana Workforce Drug Test Positivity Continues Double-Digit Increases to Keep Overall Drug Positivity Rates at Historically High Levels.” Quest Diagnostics, Quest Diagnostics, 26 May 2021, www.questdiagnostics.com/home/physicians/health-trends/drug-testing/.

[vi] Dougherty, Terri L. “Marijuana Use and Its Impact on Workplace Safety and Productivity.” Occupational Health & Safety, 1105 Media Inc., 1 Feb. 2016, ohsonline.com/articles/2016/02/01/marijuana-use-and-its-impact-on-workplace-safety-and-productivity.aspx.

[vii] The Current Consulting Group. The 2021 Employer Drug Testing Survey, June 2021.

[viii] “Overdose Deaths Accelerating During COVID-19.” Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, 17 Dec. 2020, www.cdc.gov/media/releases/2020/p1218-overdose-deaths-covid-19.html.

[ix] National Survey on Drug Use and Health. October 2021. Substance Abuse and Mental Health Services Administration. https://www.samhsa.gov/data/sites/default/files/reports/rpt35325/NSDUHFFRPDFWHTMLFiles2020/2020NSDUHFFR1PDFW102121.pdf.

[x] NIDA. "What is the scope of marijuana use in the United States?" National Institute on Drug Abuse, 20 Apr. 2021, https://www.drugabuse.gov/publications/research-reports/marijuana/what-scope-marijuana-use-in-united-states Accessed 15 Jun. 2021.

[xi] “Workforce Drug Test Positivity Climbs to Highest Level in 2 Decades” Quest Diagnostics Drug Testing Index, 2022. https://newsroom.questdiagnostics.com/image/quest_drug_testing_index_2022.pdf.

[xii] Fatal Crashes Involving Drivers Who Test Positive for Marijuana Increase After State Legalizes Drug. AAA Newsroom. January 2022. https://newsroom.aaa.com/2020/01/fatal-crashes-involving-drivers-who-test-positive-for-marijuana-increase-after-state-legalizes-drug/.

[xiii] Reilly, Joe. “Drug Testing & Safety: What's the Connection?” Occupational Health & Safety, OH&S, 1 Sept. 2014, ohsonline.com/articles/2014/09/01/drug-testing-and-safety.aspx.

[xiv] Selko, Adrienne. “Supporting Employees with Substance Issues Is a Smart Move.” EHS Today, EHS, 15 Jan. 2021, www.ehstoday.com/ehs-outloud-blog/article/21152433/supporting-employees-with-substance-issues-is-smart-move.