Legalization/decriminalization, the lack of specificity in drug testing technology, and the great resignation have changed the landscape surrounding workplace drug testing
Drug testing in the workplace became prevalent in the United States during the 1970’s and peaked in the 1990’s during the war on drugs. However, the legalization of medicinal and recreational marijuana has slowly changed the drug testing landscape for employers. Currently, recreational marijuana is currently legal in 18 states, and medical marijuana is legal in 37 states— including Pennsylvania.
While marijuana is still an illegal drug under federal law, the Pennsylvania Medical Marijuana Act (“the Act”) legalizes the prescribed medical use of marijuana for certain chronic conditions. It also prohibits employers from making adverse employment decisions solely based on an employee’s status as being certified to use medical marijuana. The Act also adds potential claims to the list of employment-related causes of action, as it has been interpreted to provide a private right of action for employees and applicants against their employers.
Moreover, the Act only allows employers to take disciplinary or job-related action against an employee when, among other things, he or she is “under the influence” of medical marijuana. The problem is that the Act does not generally define what it means to be “under the influence” of medical marijuana. And while current drug testing techniques can determine if someone previously used marijuana, they do not necessarily establish that someone is “under the influence,” which creates a problem for Pennsylvania employers because the available science doesn’t necessarily establish the legal standard. For example, drug testing limitations include: (1) the inability to spot test for intoxication; (2) the inability to tell when the marijuana use occurred; (3) whether the marijuana levels are consistent with the employee’s prescription; or (4) if the alleged drug use impacted job performance.
Because drug tests don’t indicate whether someone was under the influence, Pennsylvania employers are limited in their ability to rely on a positive marijuana test. And if the tests aren’t helpful, many employers are wondering whether it’s worth testing for marijuana, given the consistently growing number of Pennsylvania residents who are certified to use it medically?
Not only that, but a positive marijuana test opens the door to a discussion about whether the employee has a medical marijuana card. If so, it means that the employee has one of 23 specifically-enumerated medical conditions under the Act–all of which have been deemed to be a de facto disability under the Pennsylvania Human Relations Act. (The same conclusion would likely also apply under the Americans with Disabilities Act.) The discussions resulting from the test could thus put an employer on notice of the employee’s status as an individual with a disability and, in some instances, potentially trigger a duty to accommodate the employee absent undue hardship.
Legal risk is not the only thing causing employers to question the continuing viability of marijuana testing in the workplace. Another reason why employers are moving away from testing is because of the Great Resignation. During the height of the COVID-19 Pandemic in 2020, tens of millions of jobs were lost. However, millions of employees also voluntarily left their jobs in 2021 and 2022. Employers need workers and drug testing serves as a barrier for disqualifying what might otherwise be qualified applicants. Accordingly, large companies, including Amazon, have publicly announced that they are moving away from testing applicants and employees for marijuana. When an influential company like Amazon makes a policy decision of that nature, it tends to be paradigm-shifting and other companies tend to follow suit. Instead, Amazon has indicated it plans to approach marijuana use the way it approaches alcohol use.
While some employers do not have a choice but to drug test their employees (i.e. employees subject to Department of Transportation regulations), other employers may be questioning what they can do to maintain a drug-free workplace in light of evolving legislation, changing social/political landscapes, and the uncertainty of drug testing. Some things employers may want to consider include, but are not limited to, updating company substance abuse policies and creating a reasonable suspicion program and standard checklist. Next issue, we will discuss strategies for developing reasonable suspicion programs and standard reasonable suspicion checklists.
