Drug testing practices expected to stay the same despite new marijuana laws
Employers are expected to keep existing policies in place despite I-502December 6th, 2012
When new laws regulating marijuana use go into effect today, Dec. 6, those employed in workplaces that routinely test for drugs probably will still want to refrain from toking up.
Chances are good that Washington state employers that prohibited marijuana use prior to the passage of Initiative 502 will continue to do so, even if possessing and smoking small amounts of the drug are legal within the state.
"It hasn't changed anything for us," says Dustian Coates, a specimen collection technician at the Spokane Valley office of American Mobile Drug Testing. "Until federal law says it's OK, it probably won't."
Passed with 55.7 percent voter approval in the Nov. 6 general election, Initiative 502 makes it legal in Washington state for an individual to possess up to one ounce of marijuana bought from a licensed vendor and sets up a structure for taxing the drug. The initiative prohibits underage usage, and driving while under the influence remains illegal.
Douglas Hiatt, a Seattle attorney who co-founded Sensible Washington, an organization that calls for the repeal of all marijuana laws but was not involved in Initiative 502, says he supports broader reform and feels the new provisions don't go far enough.
Consequently, on the job, he says, "Absolutely nothing changed due to 502. You're still in trouble in the workplace."
Nancy Nelson, president of Spokane Valley-based staffing company Humanix Corp., says slightly more than half of the companies with which it places temporary employees request that those workers be screened for drug use. She says that percentage has been increasing in recent years.
"I haven't heard of any of our clients changing course," Nelson says.
Brandi Smith, communications specialist at Avista Corp., says the Spokane-based utility has had the same drug policy in place since 1989 and doesn't plan to change it. The policy covers all of the company's 1,500-some employees, regardless of job duty, and subjects each worker to testing before being hired and random monthly testing thereafter.
"Safety is paramount with us," Smith says. "We're not considering any changes to our alcohol and controlled-substance policy."
While safety is the primary reason for keeping the policy as written, Smith says another factor for Avista is that it has employees in four states, and marijuana remains illegal in three of those states.
For that company and others, federal regulations apply to a number of occupations and require drug testing. The U.S. Department of Transportation sent out a drug-and-alcohol policy and compliance notice earlier this week stating that recently passed state initiatives, including Washington's Initiative 502, won't have any bearing on the DOT's drug testing program. The agency says it doesn't authorize the use of marijuana for any reason.
DOT's regulations pertain to people working in safety-sensitive transportation careers, including pilots, truck drivers, train engineers, ship captains, pipeline emergency-response personnel, and aircraft-maintenance personnel, among others.
Dr. Paula Lantsberger, president of Spokane-based Occupational Medicine Associates PS, says that while federal law regulates testing of a number of professions, many companies that don't fall under any sort of federal control will continue to call for testing for marijuana, among other drugs. Occupational Medicine Associates currently handles testing for more than 1,500 employers, and that number has increased each year since the company started in 1994.
She says that even with legalization of marijuana, employers are within their rights to test for its usage and take action if an employee tests positive. Already, she says, some employers have policies that prohibit employees from using substances that are legal and take action if that substance is detected in a drug screen. Such substances include tobacco, certain prescription drugs, and—though rare—alcohol.
That sentiment is echoed by Tom Pool, executive director of Bothell, Wash.-based Drug Free Business, an organization with about 3,000 member companies, including some based here.
Pool says, "A change in the controlled-substance law doesn't affect an employer in any way. The main reason an employer tests is safety and efficiency in the workforce."
He adds that not all workers understand that dynamic. He says he's heard anecdotes from member businesses about employees who got high after hearing of Initiative 502's passing and were surprised to learn their employer was still testing for the drug, and they were being disciplined for a positive test.
"Employers don't do this to enforce the law," Pool says. "They test for marijuana because it has a consequence on the employee and—if they are civic minded—the community."
Lantsberger says a typical drug screen is what's referred to as a five-panel test, which looks for cocaine, amphetamines, opiates, PCP, and marijuana—or more specifically, an ingredient in it known as THC.
Marijuana is the most commonly detected of the five drug types, and amphetamines and cocaine frequently swap between second and third place, Lantsberger says. The hallucinogen PCP is rarely found, she says.
Testing typically is random, though many employers' policies give supervisors the right to call for a test if they have a reasonable suspicion that an employee is impaired while on the job.
The most common method of testing occurs by taking a urine sample, with hair samples being the second most common. Test samples also can be taken from fingernails, saliva, and blood, though all three of those are somewhat less common.
Lantsberger adds that one part of Initiative 502 that she finds odd is that it calls for law enforcement to take a blood sample to determine whether someone is under the influence of marijuana.
"It's odd that it requires a test that is not standard in medical practice," she says.
Avista's Smith says that an employee who tests positive is referred to a substance-abuse treatment program. Employees who refuse treatment typically are terminated, she says. If an employee starts treatment but doesn't finish successfully, it's up to the supervisor to determine whether the employee will be retained, she says.
Lantsberger says it's common for employers to offer a treatment option to employees who test positive, though some have zero-tolerance policies.
Marijuana can remain detectable for a number of weeks, depending on how much a person smokes, that individual's physiology, and the method used to test for it, Lantsberger says. A person who is physically fit and smokes once could test negative within a week, and a person who is obese and smokes regularly could test positive two months after last usage.
Lantsberger and Pool both say there isn't a medically accepted method for testing whether someone is presently under the influence of marijuana—nothing similar to a blood-alcohol content test on which DUI laws are based. Consequently, she says, a person can only be clinically tested for presence of the drug, not whether he or she is presently under its influence.
Pool says, "It would be wonderful if there was (such a test), but with THC, it doesn't exist."