Drug Testing In a Legal Environment for Marijuana

Drug Testing with Legal Marijuana

In January, Illinois will become one of the 11 states that will allow for the legal use of recreational marijuana.  While Illinois has allowed the use of medical marijuana for some time the list of qualifying diseases has kept the market limited.  That will all change in January when anyone over the age of 21 can legally purchase marijuana. 

The pending legalization of recreational marijuana has led many employers to reevaluate their current drug policy.  Should testing for THC (the active ingredient in marijuana) be one of the drugs their current testing protocols require?  What are the ramifications of not testing for marijuana? The easy answer is there is no easy answer.

Do your employees work in safety sensitive positions? If so, then you need to ensure that the workplace is a safe environment for everyone.  As we all know alcohol is legal. Employees are allowed to consume alcohol when not working. As such we have a very good test to detect whether a person is under the influence while at work.  The breath alcohol test (BAT) is a test that tells the employer that the employee is currently under the influence of alcohol. There is no such test for marijuana or any other drug for that matter.  Urine testing for drugs has been a reliable test to determine if an employee has recently consumed a drug.  

Urine testing will adversely affect people who use THC products more as the detection window for THC is longer than most drugs, sometimes as long as 30 days.  As marijuana has become more mainstream attitudes towards the drug has become more accepting. Many employers do not care about THC usage when the employee is not working.  So, the question remains, how do we protect the work environment as well as giving employees more freedom to do as they please?   

The Department of Transportation which oversees the drug testing of several government agencies from trucking and aviation to USCG has been very clear.  There will be no change to policy as it pertains to safety. We consider the Department of Transportation’s extensive policies pertaining to drug and alcohol testing to be the gold standard and advise all our clients to mirror (as much as possible) these procedures especially as it pertains to safety. 

While the decision to test for THC for employees in safety sensitive positions, in our opinion, is very clear. The water is much more muddled for employees in non-safety sensitive positions.  This is a decision each company must evaluate for themselves. Employers should know that they do not have to test for THC.  Panels can be created that do not include marijuana.  Also, many employers are deciding to switch to oral fluids testing.  Here the window of detection is much shorter for all drugs including THC.  This should result in fewer positive results for people who casually consume THC products on the weekends.  Oral fluids do have the advantage of not being easy to cheat as the collector is in full view of the donor and a sample can’t be substituted.  However, there are two major drawbacks to switching to oral fluids. While there should be fewer people testing positive for THC the same will most likely occur for all drugs.  Also having someone test positive for THC doesn’t mean they are currently under the influence as oral fluids generally have a 24 to 48 hour detection. So, the advantages of switching to oral fluids as the sole reason for dealing with THC is muted by its inherent disadvantages. 

There are currently at least two companies developing a breath test for THC usage.  While the technology may be brought to market very soon the legal aspects of testing will most likely take many years.  The standard level of .08 as the legal limit for alcohol impairment took years to be settled on both scientifically and in the courts.  This means a useful tool to measure whether someone is currently under the influence of THC is most likely many years away.  

As always we encourage employers to call and speak with us if they have any concerns about their current policy or wish to create one.