Last updated: November 27, 2023
The urine drug test is the go-to test for employee drug testing hands down. Over 90% of the specimens submitted by employers for testing are urine samples. Due to the nature of the test, it’s considered to be very invasive—some say that description includes invasion of privacy.
At the heart of that issue—in states where marijuana is legalized anyway—is the fact that urine tests detect drug metabolites rather than the parent drug. That means it doesn’t identify current impairment.
Many who support legalization and reform claim that if it’s legal to use pot, an employer shouldn’t be allowed to condemn someone on the basis of what they do on their off-hours or prior to applying for a job.
This puts pressure on employers despite the fact that as long as marijuana is deemed an illegal substance by the federal government, they have every right to enforce drug policies prohibiting its use on or off the clock.
Are they pushing the envelope?
As a matter of fact, some wonder if the laws are beginning to tip in favor of the employee over the employer where marijuana use is concerned.
Both the state of Nevada and New York City banned marijuana from pre-employment drug tests this year. The law specifically addresses privacy issues stating what an employee does on their off-hours or prior to applying for a position with a company should remain off-limits.
Thankfully, stipulations—otherwise known as carve-outs—were left in place to cover safety-sensitive employees mandated to urine drug testing by the Department of Transportation (DOT).
Furthermore, the issue of safety left another loophole for employers to grasp. Any position that includes the necessity of having an increased focus on safety in its written description may fall under the employee drug testing realm.
So, it seems lawmakers are considering ways to assist employers in continued marijuana drug testing after all.
Perhaps it’s a good time for all employers to reevaluate job descriptions from a safety standpoint making additions where possible. It may keep us one step ahead of marijuana legalization for the time being.
A bit of history
The federal government took a stance on drug testing when President Ronald Reagan became aware of the seriousness of the problem. He issued Executive Order 12564 banning federal employees from drug use.
Congress supported the president’s initiative and passed the Anti-Drug Abuse Act of 1988 and the Drug-Free Workplace Act of 1988. Employers of the general workforce were—and are—encouraged to participate in employee drug testing by taking part in the Drug-Free Workplace program.
Employers are encouraged to:
- Create written drug-free policies and procedures
- Educate employees on the dangers of drug use
- Offer supervisory training
- Offer an employee assistance program
- Implement employee drug testing
While the DOT mandates safety-sensitive employers to use the urine test, employers of the general workforce are free to use whichever test method they prefer.
However, it’s important to note that some states do prohibit using one test or another. Check the laws in your state to ensure you remain in compliance.
Drug testing and the right to privacy
Illicit drug use in the workplace is a huge safety hazard. It’s a well-known fact that employees who are under the influence of drugs increase their risk of causing or being involved in an accident.
This puts everyone around them at an increased risk as well.
Drug testing employees is a huge deterrent in and of itself. Companies that drug test employees see a decrease in workplace accidents and absenteeism. Productivity goes up and the workplace culture improves too.
Employers should have the right to determine if employees are abusing drugs while on the clock. For that matter, even using drugs off the clock can make them more susceptible to being involved in an accident while at work. Not to mention, the possibility of them calling in absent on a repeat basis due to drug addiction.
Would a different test ease concern?
The urine test was named as the approved method of drug testing by the federal government when the Omnibus Transportation Employee Testing Act of 1991 went into effect.
Employers of the general workforce tend to mimic the policies of the DOT when beginning their own drug-free program. There is even a standard DOT-like drug testing panel offered by most drug testing manufacturers.
The urine drug test is so commonplace that everyone usually assumes the company drug test means they get to “pee in a cup.”
Still, as mentioned above, they don’t indicate current impairment. Marijuana and CBD users risk a positive test result and losing their jobs even though they use the drug legally and responsibly.
Furthermore, there are times when employers require that employees must submit to a drug test in the presence of the test administrator. This raises concerns on a number of different levels.
Other methods are reliable
There are less invasive drug tests on the market. And, the DOT may soon have the freedom to utilize them both.
In October 2019, the Health and Human Services Department (HHS) published the guidelines for oral fluid drug testing. Federal drug testing programs could incorporate the test into its employee drug testing policy beginning January 1, 2020.
The saliva test wasn’t intended to replace the urine test. It was approved for use as a drug testing alternative.
Individual agencies choose whether or not they will use the saliva drug test. To date, the DOT has not chosen to use this type of drug test. However, it is hoping to soon receive clearance to begin using the hair follicle drug test.
The department submitted a request to discontinue using the urine test and replace it with the hair follicle drug test. This test doesn’t detect current impairment either, but it offers employers a 90-day window of detection.
Some trucking companies already require their drivers to submit to both the DOT urine drug test and a company hair follicle test besides.
Both the saliva and hair follicle drug tests are extremely non-invasive. They require no privacy to administer and are just as effective in identifying drug use as the urine drug test.
Could these tests be the answer to the privacy issues that plague the urine test?
The answer might be yes to all but one issue.
The countdown is on
There’s hope on that front, as well!
A company in California is releasing a marijuana breathalyzer before the end of the fourth quarter. That will definitely ease the pressure on employers who want to continue testing for marijuana in the face of legalization.
As long as drug abuse is an issue for employers to contend with, drug testing manufacturers and others will continue their quest to supply them with the tools they need to wage war.