Most workers understand that if you intend to build a career, you’ll have to pass a drug test or two. But the topic of drug testing in the workplace is contentious at best. And to many, it represents a potential breach of privacy.
Drug testing has been a part of the recruitment and hiring process for quite some time. However, this business policy staple has seen a curveball with the introduction of legalized medical, and even recreational, marijuana. There are many opinions surrounding how businesses should treat this issue in the workplace. And in some instances it has left businesses with more questions than answers. If a business doesn’t regulate alcohol use can it justify regulating marijuana use in states where it’s legal recreationally? Is it discriminatory not to hire someone who fails a drug test, even with a valid medical reason?
Business Culture Evolves
So how did drug testing become a common practice in the first place? Drug tests were initiated in the US military in 1971 after the Vietnam War. Soon thereafter, in the mid-1980s, businesses began drug testing and the Drug-Free Workplace Act was passed in 1988. This required that Federal contractors and Federal grantees provide a drug-free workplace in order to obtain a contract or grant. This piece of legislation set the bar for every business aspiring to score one of those highly coveted government contracts. In order to set their business for success, many companies implemented a drug testing policy. This further kept them in the running for government contracts and helped reduce other potential liabilities. According to one report, around 85% of U.S. employers drug test their employees.
HR and Drug Testing in the Workplace
How is a business with an employment drug testing policy supposed to handle the growing legalization of marijuana? Well, most businesses are still trying to figure that out. Despite individual state’s decriminalization and even legalization, it is still illegal at a federal level and that trumps all. So, even if you live in a state where recreational use is legal, if you maintain a government contract your employees will have to continue abstaining from medical and recreational marijuana use. You may be wondering, but doesn’t the ADA (Americans with Disabilities Act) prohibit discrimination based upon a medical condition? Yes, but illegal drugs (marijuana is considered an illegal substance federally) are excluded from this piece of legislation.
CO Supreme Court Upholds Drug Testing in the Workplace
In 2010 Dish Network fired an employee, when a random drug test revealed he had used marijuana at some point. Dish Network has a zero-tolerance drug policy, even at its locations in Colorado where this incident took place. This case was high profile because the quadriplegic employee used prescribed medical marijuana when off-duty to control leg spasms.
Despite his seemingly legitimate reasoning, the trial court, CO Court of Appeals and finally the CO Supreme Court upheld his firing. This established a legal precedent that employers could legally enforce a drug policy despite how a state views the drug. This ruling might seem unfair. But we must take into account that businesses must follow many regulations and implement them on a company-wide level.
If there’s a contract in place, like a federal contract, that requires a drug-free work environment, then that company must honor that requirement or risk losing the contract. It can’t pick and choose where, geographically speaking, to honor that agreement.
Marijuana Legalization in Canada
It will be very interesting to see how federal policies evolve now that Canada has legalized marijuana. With the growing number of US states that continue to legalize marijuana, one can’t help but wonder if the U.S. will soon follow in its neighbor to the north’s footsteps. However, the general consensus is that this is still a long ways away from happening despite how many states defy federal law. In the meantime, expect many more court cases and clever ways to circumvent employment drug testing regulations.
If you want to know more about the history of drug testing and the legality of the process, VTR Learning offers various courses to help start.
Article written by Vaughn Pourchot
Last updated March 10, 2023