Marijuana advocates push to reform workplace drug testing laws

Emily Gray Brosious

February 27, 2017: 1:15 PM CT

Israel Pioneers Use Of Medical Marijuana(Photo credit: Uriel Sinai/Getty Images)


Adults in eight states and the District of Columbia can now legally consume marijuana for recreational purposes, but nothing prevents companies from firing employees who test positive for the drug — even if they only partake on evenings and weekends, and it doesn’t interfere with their job performance.

Cannabis advocates with the National Organization for the Reform of Marijuana Laws (NORML) say workplace drug testing policies discriminate against law-abiding cannabis consumers, and the organization is launching a multi-state campaign to change that.

“Even though marijuana is legal and readily available in several states, consumers are being unfairly forced to choose between their job and consuming off the clock as a result of out-of-date employment practices,” Kevin Mahmalji, national outreach coordinator for NORML, said in a release.

According to the American Civil Liberties Union (ACLU), employee drug testing has increased by about 277 percent in the U.S. since the late 1980s, despite scant evidence to prove such testing successfully reduces illegal drug use in the workplace.  

The practice wasn’t commonplace until the late 1980s, when President Ronald Reagan began calling for workplace drug testing as part of his War on Drugs effort, as the Orlando Sentinel reported in 1986.

Federal agencies, including the Federal Bureau of Investigation, the Drug Enforcement Administration, Immigration and Naturalization Service, Border Patrol, the Bureau of Prisons and the Department of Transportation, began mandatory employee drug testing during this period. Although private companies were not legally obligated to follow suit, Reagan strongly advised them to do so.

“It is time to go beyond government. All the confiscation and law enforcement in the world will not cure this plague as long as it is kept alive by public acquiescence,” Reagan told White House reporters in 1986.

A large industry has subsequently formed around workplace drug testing, and critics say corporate profit motives are a key driver of such policies.

“Cup-peeing and mouth-swabbing are Reagan-era relics that frequently do little more than boosting the revenues of companies that analyze samples,” writes The Atlantic editor Joe Pinsker.

The global drug and alcohol testing market was estimated at nearly $3 billion in 2014, according to an August 2015 PR Newswire Europe release, and North America is by far the largest market. The global market is predicted to expand another 5.8 percent between 2015 and 2020, largely due to government regulations that support workplace drug testing practices around the world.


“Until now there has never been an organized effort to challenge the profit- driven ideology of those who seek to benefit from intrusive drug screening.”  – NORML


The ACLU has criticized random workplace drug testing as “intrusive,” “degrading” and “often inaccurate.”

According to the ACLU, the combination of human error, subpar testing instruments and faulty screening methods create a “huge potential for false positive results.”

“In 1992, an estimated 22 million tests were administered. If five percent yielded false positive results (a conservative estimate of false positive rates) that means 1.1 million people who could have been fired, or denied jobs – because of a mistake.”

Drug testing advocates like the nonprofit National Safety Council say the practice helps employers maintain high workplace safety standards and can protect employers against potential litigation stemming from employee injuries and accidents.

“People using drugs are at increased risk of errors and injury,” the organization points out in a document explaining the “importance of workplace drug testing.”

The National Safety Council advises companies to test employees for a minimum of seven compounds, including benzodiazepines, opiates, oxycodone, methadone, cocaine, amphetamines and THC, the active ingredient in marijuana.

NORML says THC shouldn’t be on that list, particularly because urine tests do not show whether or not someone is THC-intoxicated — they only indicate that someone has consumed marijuana sometime recently. THC is fat soluble and can take months to fully leave a person’s system, whereas water-soluble substances like the cocaine metabolite benzoylecgonine typically disappear from the system within days.

“Mounting evidence continues to prove there is no logical reason why adult marijuana consumers should be treated with any less respect, restricted more severely, and denied the same privileges we extend to responsible adults who enjoy a casual cocktail after a long day at the office,” Jordan Person, executive director for Denver NORML, said in a release.

Laws governing acceptable workplace drug-testing policies vary across states and localities, but most federal and state employees, and many private employees, are currently subject to drug testing in the workplace

Generally speaking, states and municipalities allow private employers to drug test employees for health and safety reasons, workplace productivity reasons, or to prevent illegal drug-related activities in the workplace, according to the nonprofit organization Workplace Fairness, which works to promote and preserve employee rights.

Some state and local laws do protect private employees from certain drug-testing practices. In California, for example, private employers can drug test any incoming employee but may only test current employees if there is a clear and present physical danger to the employee, other employees or general public, or if the employer has reasonable grounds for suspicion to justify a drug test.

Recent state-level recreational and medical marijuana ballot successes have sparked a growing movement aimed at reforming workplace marijuana testing laws. Already, lawmakers in states like Washington and Oregon have introduced legislation to prevent employers from firing workers for off-the-clock marijuana use. California NORML expects related legislation to be introduced in that state this session.

NORML’s Workplace Drug Testing Coalition plans to focus broadly on reforming workplace testing policies, as well as differentiating THC detection technology from performance testing, highlighting state legal protections for off-duty cannabis users and expanding employment opportunities for marijuana consumers.


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Gallery information via National Conference of State Legislatures

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