Are Employer Drug-Testing Programs Obsolete?

By Reidy, Jim; Hewick, Danna | HRMagazine, June-August 2018 | Go to article overview

Are Employer Drug-Testing Programs Obsolete?


Reidy, Jim, Hewick, Danna, HRMagazine


YES

Strict screening policies aren't keeping up with the times.

Drug-testing policies, especially for marijuana use, are no longer in step with the realities of today's workforce.

While pot is still classified as an illegal substance under federal law, state governments continue to move toward legalizing or at least decriminalizing it. In fact, Maine prohibits employers from testing for marijuana at the pre-employment stage and from discharging an employee for an initial positive drug test. In other states where marijuana is legal, testing agencies have reported a significant decline in drug testing of job applicants, especially for marijuana, even though positive results for such screens are at an all-time high.

"We have just waved the white flag of surrender because of the proliferation of pot and our need to hire employees without any regard as to what they do on their own time," one HR professional recently told me. Another sign of changing attitudes: Support in the U.S. for marijuana legalization was at a record high of 64 percent last fall, according to a Gallup survey. Even U.S. Labor Secretary Alexander Acosta says employers should rethink drug testing for every job applicant, Politico reported in April.

Of course, such testing is still performed routinely-and appropriately-for workers in safety-sensitive positions, both before and during employment. (For example, the U.S. Department of Transportation requires testing of interstate truck drivers and certain others.)

But otherwise, pre-employment drug tests are going the way of other once-popular, but now largely obsolete, prehire screening methods, such as those for weight, physical agility and English language skills. Facing an aging workforce, low unemployment and a strong economy, HR professionals and hiring managers are having difficulty filling positions and are thus removing any barriers that might exclude otherwise qualified people from the workplace.

In addition, many employers don't see a return on investment when they weigh the costs of random and pre-employment testing against the results. They express concern that random screening can hurt morale and prompt applicants and employees to look elsewhere for work. Some states, including Colorado and New York, have actually made it illegal to discipline an employee for engaging in a legal activity outside of work hours.

Another reason employers are increasingly reluctant to test for drugs is the potential legal challenges that could come with screening, including from employees claiming that organizations did not follow proper notice, testing or sample custody procedures. Those claims could involve disability, race or age discrimination, or invasion of privacy.

Finally, business leaders who don't want to put federal contracts or other funding in jeopardy are concerned that they'll be caught up in a brewing legal battle over differences between federal and state law on marijuana.

In the past, some supervisors who suspected an employee of drug or alcohol abuse chose the path of least resistance by not testing or even mentioning their suspicions and instead conveniently including the worker in a reduction in force, or firing him or her for absenteeism, poor performance or safety infractions. Now, to avoid problems, more managers are focusing solely on job performance and shying away from optional drug screens.

In short, drug testing, especially for marijuana, is declining-and over time screening for pot could go up in smoke.

Jim Reidy is an employment lawyer and shareholder in the Manchester, N.H., office of Sheehan Phinney Bass & Green PA. He is scheduled to speak at the SHRM 2018 Annual Conference & Exposition. …

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