Drug Testing in a Tight Labor Market

February 9, 2022

Despite being more than two years into the current COVID-19 pandemic, employers continue to struggle with staffing challenges in our tight labor market. According to the Bureau of Labor and Statistics, job openings far outpace the number of unemployed workers, with more than 10.4 million openings and only 9.4 million workers available in the fourth quarter of 2021, with hospitality, retail, and healthcare being the hardest hit.

As if finding the right talent wasn’t hard enough, applicant and employee drug screening for cannabis have their own additional challenges, leaving companies considering dropping or modifying their substance abuse testing policies. The cannabis industry continues to grow in spite of being illegal at the federal level. As of January 2022, every state except Idaho, Nebraska, and Kansas provides for some form of legal cannabis use. Legality varies from the allowance of CBD/low THC products, medical usage, and recreational use/decriminalization. Currently, 18 states have legalized recreational use; and 36 states allow medical use. Employers doing business in those states struggle with managing compliance given the disparity in the laws, as well as a general difficulty getting and keeping workers.

During the summer of 2021, Amazon publicly announced that it stopped testing for cannabis, with other companies following suit. Some states have passed laws banning testing employees for cannabis, as well as discrimination for off-duty legal usage (such as New York and Montana). In spite of ongoing rumors of a different testing method emerging, employers still face limited options for cannabis screening. The metabolites of cannabis reside in body fat, and as such, an individual may continue to test positive for weeks after usage depending upon the individual’s metabolism, frequency of use, and THC levels in the product used. Current testing technology cannot distinguish an individual that used cannabis off duty from an individual who used cannabis while on duty. While saliva testing provides a shortened testing window, it still cannot distinguish between on or off-duty usage and is not as commonly used as urine. Given that employers have a general duty to provide a safe workplace under OSHA (or in Washington, WISHA/DOSH), it can be a difficult decision about how to proceed. Employers may feel pressured to ignore the failed drug screen in order to keep valuable employees or to address staffing shortages, effectively invalidating their policy and creating inconsistent application of the policy. Employers are implementing a variety of solutions, including:

  • Removing cannabis from screening all together
  • Removing cannabis from the pre-employment or random screenings, but maintaining the right to test for cannabis under reasonable suspicion
  • Removing cannabis from screening for non-safety sensitive functions, unless part of a reasonable suspicion test
  • Continuing to screen for cannabis, but implementing increased communication with applicants and employees to raise awareness about the policy and expectations

Employers must consider the safety-sensitive nature of their work when determining the best course of action. Safety-sensitive jobs depend more heavily on drug testing as a way of proactively increasing workplace safety. Employers in Washington are not required to use one standard for all positions and may implement a hybrid policy that relaxes standards for non-safety sensitive functions based on position-specific rules. Laws in other states, including Montana, restrict who may be tested under any circumstances. Employers may also opt to increase education and awareness for employees about substance abuse (including cannabis and alcohol).  It’s important to note that employers/employees that are federal contractors or are governed by DOT substance abuse testing must continue to test for cannabis. The US Department of Transportation has made clear that state initiatives do not impact their longstanding regulation prohibiting the use of cannabis by safety-sensitive transportation employees (such as pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, etc.). DOT “Recreational Marijuana” Notice | US Department of Transportation The DOT does not distinguish between medical or recreational use of cannabis.

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