It’s safe to say that 2021 will be remembered for a lot of things we had hoped were behind us—a labor shortage, supply-chain problems, and workplaces that hadn’t quite gotten back to normal when variants of the coronavirus spread across the country and the world wreaking further havoc on businesses.
Additionally, another big year for the legalization of marijuana in many states caused a growing number of employers to ignore the dangerous impact of marijuana impairment in the workplace and drop cannabis from their drug-test panel. According to the Current Consulting Group’s 23rd Annual Drug Testing Industry Survey, 63% of drug testing providers said they had clients stop testing for marijuana, which is up from 45% in 2020 and 17% in 2019.
Also in 2021, a landmark report from the University of Sydney revealed that marijuana impairment lasts much longer than proponents of marijuana legalization previously claimed, from 3 to 10 hours versus just 2-3 hours.
Perhaps the biggest development in drug testing was the rapid increase in the number of drug testing providers who now offer oral fluid drug testing. In Current Consulting’s 2021 survey, 72.64% of drug testing providers said they now offer lab-based oral fluid testing. That’s up from 63% in 2020, and 36% in 2019.
So, what does 2022 have in store for employers and drug test providers? Following are 5 predictions worth considering as you make drug-free workplace plans for the new year.
More marijuana legalization
The old expression often used to describe an irreversible trend, “The train has left the station,” can be applied to marijuana legalization. The marijuana legalization train left the station for good in 2012 when Colorado and Washington became the first states to legalize marijuana for so-called “recreational” use. Since then, 17 other states plus the District of Columbia and Guam have followed suit.
Additionally, many states have legalized marijuana for medical use, decriminalized marijuana, and/or legalized cannabidiol (CBD/low THC). In fact, as 2021 came to a close, the only states not to have legalized marijuana in one form or another were Idaho, Kansas, and Nebraska.
In 2022, we will see:
- More states legalize recreational marijuana use. Which ones? Just work from the list of states that have already legalized medical marijuana and take your pick.
- More states that have already legalized recreational marijuana will modify those laws to discourage workplace drug testing for marijuana by limiting what employers can do with a positive test result. See Illinois as an example of what other states will do.
- More states will decriminalize other dangerous, illicit drugs à la Oregon. Wait a minute. What’s that got to do with marijuana legalization? Thirty years ago, marijuana was often referred to as the gateway drug to the abuse of “hard” drugs like heroin and cocaine. Today, marijuana legalization is the gateway to decriminalization and ultimately the legalization of all illicit drugs if the pro-legalization movement has its way.
More New York-style limitations on drug testing for marijuana
In 2021, New York became the first state to basically prohibit workplace drug testing for marijuana. And while there are some obvious exceptions to the Empire State’s restrictive testing law (i.e., DOT-mandated testing), most employers will likely choose not to challenge the law and thus face legal challenge after legal challenge when marijuana-impaired employees cause accidents, harm to others, and property damage. However, we can expect to see other states follow New York’s example.
It will take some years, though not that many, most states with legal recreational marijuana laws will prohibit or so severely restrict workplace testing for marijuana as to discourage most employers from including marijuana in their drug-test panel.
A related prediction will be an ever-increasing number of workers impaired by marijuana while on the job, more accidents, workers’ compensation claims, and lawsuits, and a corresponding drop in productivity. The legalization of marijuana doesn’t make the drug less dangerous but making testing for marijuana illegal will make workplaces less safe, less productive, and less desirable to the majority of employees who do not use marijuana and do not want to work side-by-side with marijuana-impaired co-workers
More employers dropping marijuana from their drug-test panel
Laws like New York’s will result in fewer employers including marijuana in their drug-test panel, but that won’t be the only reason why most employers drop THC from their programs. According to Current Consulting’s 2021 industry survey, 79% of providers said employers are concerned about “their ability to test for THC.” In other words, many employers doubt they have the legal right to test for marijuana even though testing for marijuana remains legal in virtually every state.
Additionally, 71% of providers said employers are concerned about the “legal risks” of testing for marijuana. In other words, will they get sued if they test for marijuana? Can they take adverse employment action against an employee who tests positive? Are they allowed to refuse to hire an applicant who is a registered medical marijuana user?
More oral fluid drug testing
As stated above, the percentage of providers who said they are now selling oral fluid testing has increased dramatically over the past three years. The pandemic probably pushed a lot of providers toward oral fluid testing to meet the needs of employers who were having problems getting urine collections performed at off-site facilities, which were perceived by some as possible “super-spreader” locations. Additionally, many occupational health centers were unable to provide urine collections for drug testing during the height of the pandemic.
The ease of an oral fluid collection makes it possible for employers to bypass traditional collection sites and conduct the collections at the workplace without worrying about taking the precautions inherent with urine collections. Oral fluid testing is available as a lab-based test and as a rapid-result, point of collection test. With either method, collection problems are solved. And rapid-result testing, which typically renders a screen result within 10 minutes, makes same-day hiring possible, which will be more and more attractive to employers in 2022 as the labor shortage continues and the competition for workers becomes ever fiercer.
More impairment/fitness for duty testing in conjunction with drug testing
As employers grapple with the issue of testing for marijuana while at the same time facing the highly predictable negative impact on safety in the workplace from dropping marijuana from their drug-test panel, many will turn to other technologies to identify impairment or fitness for duty. Fitness-for-duty testing will not replace drug testing, but in conjunction with a positive test result, it will strengthen an employer’s justification for taking adverse employment action, especially in safety-sensitive workplaces.
Conclusion
We can all remember the worldwide collective sigh of relief when 2020 came to an end. No way, we thought, could 2021 be that bad… and then it was. For employers, 2021 was, in many respects, at least as challenging as the previous year. And drug testing services and policies took another big hit.
Schedule a call with Orange Tree to learn how we can keep you updated on the latest drug testing regulations and how your workplace drug testing policy can stay compliant.
The foregoing is not legal advice, express or implied. We recommend you seek the advice of your own legal counsel for all aspects of employment law.
