Drug testing has been a part of many workplaces for the last four decades. However, the increase in positive drug tests since smokable medical marijuana was legalized in Florida in 2019, and the ongoing worker shortage, have many employers considering if drug testing is still worth it.
“Since COVID, a lot of the companies have stopped drug testing because they’re trying to get people to come back to work,” says Deanna Lukich, owner of drug, alcohol and DNA testing facility Fastest Labs of Fort Myers. “The company doesn’t want to drug test them … because if they do, then they know that they’re going to be positive for something. So they just say, ‘Hey, I don’t need to know, as long as you’re doing your job.’”
While not all employers can completely forego drug testing, many are reconsidering their company policies. In most cases, those companies are seeking a balance between staffing needs, costs and financial incentives.
“In Florida, we have what’s known as the Drug-Free Workplace Program. That is part of our workers’ comp statutory scheme, which allows employers to get a 5% discount on their workers’ comp insurance premium if they comply with the Drug-Free Workplace program,” says Damian Taylor, an employment lawyer with Coleman Hazzard Taylor Klaus Doupé & Diaz Attorneys at Law in Naples. “Most of the employers I deal with, if they have a drug-testing program, it’s for that reason … to get a discount on their insurance. Now, because the insurance discount isn’t that substantial, there are a lot of employers who say, ‘We’re just not going to hassle with it,’ or maybe the compliance is not really rigidly enforced.”
Though some businesses are opting for more casual or selective drug testing, employers with greater liability for whom safety is paramount may not have that option. For those companies, legalized medical marijuana is creating a bit of a conundrum.
“Drivers, heavy equipment operators, people working in those kinds of capacities, occupy what is sometimes referred to as a ‘safety-sensitive position’ where, if they were to perform under the influence of alcohol or drugs, they could really be threatening the safety of not only themselves but members of the public, consumers and passengers,” Taylor says. “We have legal medical marijuana (in Florida), but we do not have recreational uses legalized. And so employers are free to not only continue testing for marijuana, but to terminate an employee, or impose other forms of discipline on an employee, who tests positive for marijuana. The discipline and termination can still be perfectly lawful because the drug remains unlawful at the federal level.”
The law may be clear on the legality of medical versus recreational marijuana, but its use for medical purposes may put some employers and employees in a gray area. That hard-to-define space between legitimate medical use and recreational use has businesses seeking clarity when complying with the Americans With Disabilities Act, or ADA.
“For the longest time, employers have felt very comfortable just terminating an employee or disciplining an employee on account of illegal drug use,” Taylor says. “What could be changing is … attitudes being more favorable, more forgiving, more understanding of, at least medical marijuana use, and the realization that medical marijuana use almost necessarily implies that there’s an underlying medical condition which qualifies the person for a medical marijuana card. If you have an employee who gets fired after testing positive for medical marijuana, and they want to challenge the employer’s decision, it’s just easier for a medical marijuana patient to say, ‘The decision wasn’t motivated by my illegal use, but rather my underlying disability.’ I think employers are wise to tread more carefully around the issue when it arises with medical marijuana.”
The issue of legal medical marijuana vs. recreational use is also forcing many employers to adjust their drug testing policies to simply hire more employees. Ultimately, Lukich said, every employer has to weigh their attitude on marijuana—whether it’s for medical or recreational use—against the costs involved, the company’s liability and the safety of their workers and customers.
“I have a rapid panel test with up to 17 panels, and they all test for marijuana. We’re able to take out that panel if they don’t want to test for that. If I get a non-negative—we don’t call it a ‘positive’—I have to send that out for confirmation to a laboratory, then it gets a little bit more expensive,” Lukich says. “If everything else is clean when they get their non-negative on marijuana, that’s up to the employer, and they don’t have to send it out for confirmation if they don’t want to. Then the employer has the chance to … say, ‘OK, now we’re good, I can live with that.’”