Molly Kelley leads a discussion with Suzi Alligood and Brandon Laws on an article from The Atlantic on “The Pointlessness of the Workplace Drug Test.”
During the episode, they discuss why drug testing become so common, whether or not it actually helps or hurts, and how employers should handle drug testing in the future– specifically with the legalization of marijuana in several states.

Supporting Article:

“The Pointlessness of the Workplace Drug Test,” by Joe Pinsker, The Atlantic

Download the MP3 | Run Time: 12:02

Molly: Hello everyone and thank you for joining us! This is Molly Kelley and I’m joined by Suzi and Brandon to discuss a very hot topic. As we’re recording this, it’s July 2nd, last I checked at least. On June 30th I sent out an email to our HR team saying, “Happy weed eve!” So we are celebrating the second day in the state of Oregon of legalized marijuana, which has been very interesting.
Brandon: Some employers probably aren’t celebrating right now.
Molly: No, probably not celebrating! Maybe some people are celebrating, but maybe not employers. It’s been a really interesting conversation for us for the last, well since November honestly, trying to kind of position and respond to employee concerns. And I think it’s a really relevant conversation.
We actually found this wonderful, interesting article from The Atlantic called—they don’t beat around the bush here—“The Pointlessness of the Workplace Drug Test.” And it’s a very interesting article written by Joe Pinsker on June 4, 2015. It states that last year, U.S. workers peed into one drug testing company’s cups about 9.1 million times. And what I find interesting about that last year, as in other recent years, only about 350,000—so out of 9.1 million only 350,000—cups indicated drug use.
It feels a lot higher on the HR side, I have to tell you. A lot of them, I think, were my clients’ employees at some point in time because it feels like we encounter that quite a bit. I think the point here in the article is essentially, how relevant is drug testing to most positions? I think there’s a strong safety argument a lot of the time, but sometimes—
Brandon: We just don’t have that economy anymore, really.
Molly: Yeah, and the article talks about—there’s a really interesting theory behind this—this whole movement of drug testing, pre-employment screening, and then randoms and mandatory testing, comes from the 1980s Regan era.
Brandon: The 1988 Ronald Reagan executive order.
Suzi: “Say no to drugs!”
Brandon: And they said basically that this is a movement with the corporations to say, We stand behind our drug policy.
Molly: Right. And that before that there wasn’t really an emphasis.
Suzi: Interesting.
Molly: Right now, 40% of U.S. workers are currently subjected to drug tests during the hiring process. So pre-hire is about half.
Suzi: It’s very common. We see it with most of our clients.
Brandon: Yeah, I thought it’d be higher than that.
Molly: Yeah. I’m actually kind of surprised it isn’t higher as well. But they’re really saying that these policies originally from the 1980’s fueled theSuzi Brandon Molly-1 development of a huge industry of drug testing. So it’s been sustained not just by Reagan era politics and the focus on stamping out drugs but also that you’ve got businesses that make their living on drug testing and providing the materials and labs and all the rest.
Suzi: The collection facilities and contracts with the labs.
Molly: And the analyzing. So it’s a really interesting argument and one that’s growing for us. I think Portland, we’re based here in Portland, I think Portland has a particularly progressive market where quite a few of our employers do have drug test policies that are zero-tolerance. But some of them don’t and are pretty adamant about having no stance at least on marijuana. If it creates an impact on performance, it’ll show up and we’ll deal with it then. So I’m kind of curious to get your takes on it, from the two of your perspectives in terms of whether you’re going to see drug testing lessen as there seems to be kind of a loosening of criteria and judgment around marijuana use at least in some states.
Brandon: To me, I don’t know a ton about the drug testing process, but Suzi and I did a podcast on the legalization of marijuana and what employers should do about it, it just seems to me like it’ll actually go more on the drug testing side and regulatory and employers will try to figure out a way to adapt, I guess. And I think that was the point you made, Suzi, that most employers have a no tolerance policy at all, but if people are casual pot smokers and they’re your best talent, maybe you should have a last chance? Or maybe you’re completely okay with it, I don’t know. For me, I’m not a drug user myself, but I don’t think it’s going to impair somebody’s ability to be very productive on the job either. But I don’t know.
Molly: Depending on the drug.
Brandon: Depending on the drug!
Suzi: And the amount!
Brandon: But I think most people use alcohol and marijuana, those are the two biggest. I think a lot of people are also on painkillers and prescription medication too. So that’s the challenge, and I just don’t know.
Molly: I think the data supports you, Brandon. The gentleman who wrote the book that the article’s based on, he writes in his book that there isn’t any proof that drug tests reduced drug use. And that makes sense, if that’s your lifestyle.
Suzi: Yeah, people are going to do what they’re going to do.
Brandon: And isn’t there a way around drug tests, too? For example, smoking marijuana, can you just stop for a couple days and you’ll be fine?
Molly: No. So that’s actually an inaccuracy in this article.
Brandon: I think it probably depends on your body type, doesn’t it?
Molly: No, actually. So what most attorneys and medical review officers and folks will say is that it stays in your system for 30 days.
Suzi: It’s stored in your adipose or fatty tissue.
Brandon: We’re getting technical!
Suzi: It does, and so that takes longer to metabolize, whether you eat it or smoke it.
Molly: Yes, that’s true.
Brandon: Yeah, I was just reading a quote from this and it says that anybody who smokes pot and then just stops for several days, they could probably get around it.
Molly: That’s inaccurate as far as I’ve been told.
Suzi: I’ve talked to medical review officers about this, but it depends on how much fat someone has in their body, since it’s stored in the adipose tissue, and that person’s metabolic rate. Also how much they smoked or consumed, how often they use. If it’s a one time only, that may lessen the impact of it. If you’re around a regular user, too. There’s all these variables and every body’s different, that they safely say that for many people it can be in your system up to 30 days.
Brandon: So if that’s the case, drug testing isn’t that useless, right? If you’re trying to catch marijuana users in your workplace.
Molly: If you’re trying to catch it. And I think that’s the whole argument. Employers are potentially missing out on qualified candidates because they’re coming up positive on drug tests in a state where we’ve said we’re going to go ahead and legalize it like cigarettes and alcohol and anything else. And it’s very similar in terms of thinking as you guys discussed in the previous podcast you did on legalization, it’s similar to thinking about it in terms of alcohol. Anybody who comes to work stumbling drunk and jumps on a forklift, we have a problem. If you come to work under the influence, jump on a forklift, and you’re really impaired—your judgment is off in terms of taking corners—then that’s a big concern.
Suzi: And therein lies the challenge with marijuana being in your system for a long time. Because you could conceivably be not impaired but if you got into an accident at work and then had to go take a drug screen and it shows up a detectable amount, even if you consumed it weeks ago, then you’ve got a policy violation.
Molly: You fail.
Suzi: It’s interesting—we do have some clients that, because of back when the medical marijuana dispensaries and everything came up and the cards were prescribed and allowed, they at that time took the stance that if you have a prescription for medical marijuana, we’re not going to test you or disqualify you for employment, but what we ask is that you don’t use before work. For example, you can use up to 4 whatever the night before, but starting the workday, you do not use. So they probably have it in their system, but are they impaired to the extent that it’s going to impact their job? And they feel comfortable with that.
Brandon: To me that seems like a very progressive way to go about it.
20140729-IMG_6206_2Molly: That’s going to be more of the approach. Another thing in here, I think there’s a case going through Colorado state courts right now where they’ve, of course, legalized before Washington and Oregon that specifically speaks to levels. So kind of like with alcohol where you can be below a certain level.
Suzi: Sure, the legal amounts.
Molly: This level you’re impaired, this level you’re not. They’re talking about doing something like that for marijuana where you can really indicate that this was past use and it’s below this level, or maybe it was last night and you just happen to be somebody with a really high metabolism and really lean. But essentially something that allows an employer to say, This is what caused—
Suzi: A threshold.
Molly: Yeah. Because we all are aware of the fact that there are careless people out there all the time who, they don’t have to be under the influence of anything, but get them on a forklift and they’re going to be reckless, because it’s their own judgment issue. It’s nothing to do with marijuana or alcohol or anything else.
Suzi: Yeah, it is interesting.
Molly: I think the other piece of the article here that we’re not touching on as much is part of the article and the theme of the book is to focus on how this is a money making industry, drug testing. And employers are spending not insignificant amounts.
Brandon: It’s a lot of money, and it’s actually hurting them too, because they could be losing out on talent. So, I read the Steve Jobs biography about a year ago, that guy, he’s almost the Thomas Edison of our time, right? And he admittedly was on LSD during the time he was growing Apple, and the guy’s brilliant. Could you imagine if the board of Apple said, sorry, you tested positive for LSD, you’re gone!
Molly: I’d have no iPhone!
Brandon: You’d have no iPhone, yeah. So that’s an extreme example.
Suzi: I remembered what I was going to say earlier about your limits. So the OLCC is tasked with coming up with limits for DUI purposes. The other states have done that, so Oregon will probably borrow from some of that information. But there will be limits of what would constitute a DUI.
Molly: Which is how we handle prescription drugs. If I’m allowed X amount of Vicodin in a four hour period and I’m at three times that, that’s an issue. So it’ll be an interesting conversation and one that we’ll certainly be keeping track of now that we’ve passed weed eve here in Oregon.
Suzi: It may be an interesting July 4th weekend, some extra celebrating may be going on!
Molly: We’ll post links to this article and we thank you all for joining us!
 
Image credit: Myfuture.com Flickr