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Retailers and Employment Drug Testing: Legal Rulings, Trends, and Budget-Friendly Prevention

US employers are feeling the impact of liberalized marijuana laws, according to employment drug testing performed by Quest Diagnostics.

Changes in state laws regarding the treatment of marijuana, which are in direct conflict with federal law, have raised concerns and caused confusion among employers and employees regarding standards for drug-free workplaces and employment drug testing procedures and programs. An Arizona US District Judge is the latest to weigh in on the matter—ruling on the side of a Walmart worker who had been fired after failing a company drug test.

The case: Carol Whitmire, an employee of Walmart for eight years, underwent a urine drug test after she injured her wrist at work in 2016. The test came back positive for marijuana metabolites, and she was subsequently fired.

Whitmire then sued Walmart in federal court in Phoenix, alleging wrongful termination and discrimination in violation of the Arizona Medical Marijuana Act (AMMA), the Arizona Civil Rights Act, and Arizona worker’s compensation law.

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The verdict: In the court ruling, issued on Feb. 7, the judge rejected parts of the worker’s claims.

However, the verdict also asserted that Walmart’s firing violated the AMMA, which states it is illegal to discriminate in hiring or firing “unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment.”

Walmart did not meet the burden of proving that the positive urine sample test “sufficiently establishes the presence of metabolites or components of marijuana in a scientifically sufficient concentration to cause impairment,” wrote the judge. In the wake of the ruling, Walmart issued a statement: “We work every day to create and maintain a safe environment for our associates and customers. We are pleased the Court dismissed several of the claims; and we will continue to prepare our case.”

The upshot: For years, US courts have upheld the terminations of employees in cases involving cannabis use in violation of company policy. This most recent verdict, however, and another in Connecticut (Noffsinger v. SSC Niantic Operating Co., LLC), suggest that courts are starting to evolve their view of employee rights under state medical marijuana programs.

The Safety Imperative

US employers are feeling the impact of liberalized marijuana laws, according to employment drug testing performed by Quest Diagnostics, a leading provider of diagnostic information services.

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Overall, the rate of positive drug tests for marijuana in 2018 continued its five-year upward trajectory for the general US workforce, driven by sharp increases in states that have enacted recreational use statues since 2016. “While it is too early to tell if this is a trend, our data suggests that the recreational use of marijuana is spilling into the workforce,” said Barry Sample, PhD, senior director of science and technology for Quest Diagnostics, on the release of the company’s 2018 Drug Testing Index.

The rate of positive drug tests show that retailers must remain attentive to the safety risks posed by an impaired workforce. Increases in cocaine, methamphetamine, and marijuana have offset a decline in positive tests for prescription opiates. Drug use by the American workforce remains at its highest rate in more than a decade, with a national rate of positive tests at 4.2 percent, well above the 3.5 percent rate in 2012. Additionally, the geographic variability in worker drug use also complicates efforts by employers to prevent worker drug use.

“Not only have declines appeared to have bottomed out, but also in some drug classes and areas of the country drug positivity rates are increasing,” said Sample. “These changing patterns and geographical variations may challenge the ability of employers to anticipate the ‘drug of choice’ for their workforce or where to best focus their drug prevention efforts to ensure a safe and healthy work environment.”

In light of the sharp rise in the use of prescription drugs, particularly for anxiety and pain, and the associated impact on workplace safety, protection professionals have to make some tough decisions to balance concerns. These include:

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  • whether to test for prescription drugs and, if so, which ones;
  • maintaining compliance with the ADA, which generally prohibits asking about prescription drugs unless workers appear to be impaired and a safety risk;
  • communicating a policy detailing which drugs workers might be tested for and under what circumstances;
  • whether to ask workers in safety-sensitive jobs to self-report potentially dangerous prescription medications; and
  • training supervisors on what constitutes “reasonable suspicion” of impairment, which paves the way for legal testing.

Discouraging Workplace Drug Use

Employment drug testing clearly correlates with lower rates of workplace drug use, but not every retailer wants to bear the cost of drug testing its workforce or thinks it is a good fit for the company culture. However, health experts suggest that all companies can employ cost-friendly security ideas to keep a lid on workplace drug use.

Conduct selective testing. If a retailer is worried that drugs are becoming a problem, but occasional testing of all employees is too costly, it can consider focusing its employment drug testing program. When companies conduct tests because an employee has given them a reason to, tests are more than eight times more likely to be positive, according to drug testing data.

Investigate. Surveys show that drug users use company bathrooms for drug use in fewer than 20 percent of cases. Most of the time, therefore, employee privacy is not an issue, and security cameras in place for other reasons may also be helpful in spotting illegal drug activity. Conducting surreptitious surveillance of employees is more cost-effective than letting drug trafficking and use graduate to the point that a company needs to deploy an undercover investigator.

Target your awareness efforts. One way to maximize drug prevention effectiveness and cut down on the resources it takes, is to analyze trends in drug test results or drug incidents and to concentrate education and awareness activities on those drugs that are a particular problem, say experts. If a company doesn’t test, or has too few incidents to discern patterns in drug usage, the type of drug that workers are likely to be using on-the-job probably depends on a retailer’s location. There is a strong geographic element to workplace drug use.

Put it in writing and let employees hear it. Employees know they can’t bring drugs into the workplace, but it is still helpful to spell out the obvious in a store policy and by reminding employees of it on an occasional basis. Crime prevention research shows that when organizations explicitly tell employees the rules, workers follow them more often. While a policy can’t deter hardcore users, this no-cost strategy does effectively dissuade casual users, research indicates.

Enforce the rules and prosecute. Take disciplinary action against all employees who commit drug offenses in accordance with your written policy. It’s not likely to be your call, but if a company lets drug infractions slide when committed by star employees, expect other employees to get the message that the company tolerates drug crimes in the workplace. For the same reason, it is recommended that companies should refer anyone caught trafficking drugs for criminal prosecution and to let that word get around as a warning to other employees.

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