Insights from both the legal world and our user data
With the increased legalization of medicinal and recreational marijuana usage, some companies are loosening their employment drug testing policies to avoid restricting their talent pool. For others, hiring drug free workers continues to be vital to ensure a safe environment for workers and customers.
According to Quest diagnostics, 4.4% of employment drug tests were positive in 2018, representing the highest rate seen since 2004. Marijuana accounted for nearly half of all positive drug test results. Here at The True Negative, 5.6% of users report testing positive for a drug, with 70% testing positive for marijuana.
What happened to these users? How their employers responded to the positive drug tests were one of the following:
• Offer rescinded
• No consequence
• Forced to sign a waiver removing company of liability for injuries on the job if employee continued to test positive
Interestingly enough, the employer of the user who faced no consequence was a law firm. This raises the question, is employment drug testing even legal? In short, yes. federal, state, and private employees can be subject to drug testing by law. In 1989, the Supreme Court ruled that even though drug testing does infringe on an employee's privacy, it can be necessary to protect the health and safety of others (Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 (1989))
While it is not illegal to test current or potential employees, guidelines regarding how it is carried out vary by state. Differences in state policies typically relate to the following key areas:
• Can refusing the test be grounds for not hiring?
• Can refusing the test be grounds for not receiving unemployment benefits if fired?
• Can a positive test be grounds for not hiring?
• Can a positive test be grounds for firing without unemployment benefits?
• Must the applicant be notified before the test? Must they be notified in writing?
• Must job ads carry notice of drug testing requirements?
As we explored in an earlier blog post, states such as Nevada have limited the negative consequences of testing positive depending on the drug and the job. If you’re curious about your state’s approach, see this table here, review workplace fairness information, and consult a lawyer for additional assistance.
One thing that is illegal, regardless of state, is singling out employees for drug testing prior to employment. If an employee wants to test one potential employee it must routinely test all potential employees, When it comes to drug testing on the job, singling out employees is not considered discriminatory, particularly when there is “reasonable suspicion” that an employer is using drugs.
Have you tested positive for drugs from an employment drug screening? Share your story with The True Negative!