Drug testing on the Way Out for Employers?

In 1982 I was an Air Force captain starting law school. The US military was embarking on the nation's first large-scale drug testing program for its members. The first several years of that testing program revealed that approximately one in four individuals randomly tested were showing positive for marijuana or cocaine.

Over the years, drug testing moved into the civilian sector and it is now commonplace. Employer drug testing ushered in a wave of state regulation concerning employee rights, driven by concerns of invasion of privacy with respect to off work activity, disparate racial impact, and others.

Indeed, employee drug testing compliance was a major legal issue for many years. But we are starting to see another one of those seismic shifts in employment law that come along every decade or so. As more and more states legalize recreational marijuana, employers are starting to drop mandatory drug testing or applicant drug testing is a requirement for their employees.

This is driven by a number of factors, legalization being just one. According to at least one recent and reliable poll, 64% of Americans favor marijuana legalization for recreational use. Only 12% favored recreational legalization in 1969. In addition, it's getting harder and harder to find employees generally in this market, and drug testing weeds out,so to speak, a number of people who would otherwise be considered solid candidates. Failed drug tests reached an all-time high in 2017 according to SHRM data.

Excellence Health, a Las Vegas-based healthcare company with 6000 employees, no longer drug tests people coming to work on the pharmaceutical side of the business. AutoNation announced it will no longer disqualify job applicants who tested positive for marijuana. The Denver Post ended preemployment drug testing for all safety sensitive positions in September 2016. This likely explains the quality of some of the recent writing there about the Broncos quarterback situation.

Now, this drop in testing will be good news to some of you.

But lawyers need to start thinking about implications for their client base, particularly in areas of insurance coverage, if it starts becoming likely that a portion of the workforce is either actively or residually impaired. Or appears to be impaired. Drug testing still has a significant impact on federal contractor employment, and for federal contractors, drug-free workplace policies are going to become an increasingly important issue.

It's going to become even more important that employers are able to identify employees impaired by dope and not rely on postaccident testing. Employers will have to think creatively about how they deal with signs of incapacitation and what constitutes incapacitation at work.

These are all issues that companies need to start thinking about now. And understand that they may be looking at a workforce that is riskier than the one they have today.