Marijuana: Legal Doesn’t Mean Safe

The spate of recently implemented recreational marijuana laws has left employers feeling dazed and confused when it comes to testing, but they have options — and an obligation — to ensure workplace safety.

• By David Kopf
• May 01, 2024

There’s a time-worn expression, “Just because you can, that doesn’t mean you should,” that applies perfectly to the current status of marijuana laws and workplace safety. Currently, cannabis is legal for recreational use in 24 U.S. states, essentially half the union, but marijuana’s newly acquired legal status has created confusion about what that means in terms of ensuring workplace safety.

Let’s start with some basics. Marijuana and work don’t mix, especially when it comes to occupational safety.

“Very simply, the legalization of marijuana is creating a lot of confusion among employers and even drug testing providers,” explains Bill Current, the president and founder of Current Consulting Group, which provides drug testing consulting. “It’s creating this false assumption that marijuana because it’s now legal in so many states, is a safe drug.”

That assumption could not be further from the truth. People trying to perform safety-sensitive tasks, such as operating machinery or handling dangerous materials, under the influence of cannabis are less safe, if not downright dangerous. Unlike alcohol, there is no standard measure for impairment, but cannabis’s potential for impaired judgment, attention, memory, and motor coordination raises valid concerns for workplace safety, particularly in industries where these cognitive and physical abilities are crucial for the safety of all employees.

A February article from JAMA Health Forum reports an association between recreational marijuana laws and workplace injuries among younger workers. Using workplace injury data from the Bureau of Labor Statistics’ Survey of Occupational Injuries and Illnesses, JAMA Health Forum’s study showed that states with laws that allow recreational marijuana sales were associated with a 10 percent increase in workplace injuries among individuals aged 20 to 34 years.

“People under the influence of marijuana, trying to perform safety-sensitive functions are just as dangerous as they’ve ever been,” Current says. “It’s not as if somehow people under the influence of marijuana became better at performing their jobs just because the drugs have been legalized. 

 “And I think, because of all of that, employers still have probably a right, and I think they have an obligation to continue to test for marijuana to ensure that their workplaces are as safe as possible,” he adds.

The Status of Marijuana Testing

When it comes to the legality of testing for marijuana, drug testing for marijuana by employers is legal in every U.S. state except for the state of New York, which, unlike other states, makes no exceptions for safety-sensitive jobs. That said, New York’s marijuana testing prohibitions don’t apply when federal laws mandate drug testing, such as Department of Transportation regulations.

Additionally, there are new laws in California and Washington, both effective Jan. 1, that impact how employers test for marijuana. The laws are designed to protect marijuana users’ rights by restricting employers from taking adverse employment actions against employees (California) or prospective employees (California and Washington) as the result of drug tests that find non-psychoactive cannabis metabolites resulting from their legal recreational marijuana use. Essentially, the laws are saying that past legal use of cannabis does not mean a lasting impairment. 

However, there are testing options that can detect the recent use of the psychoactive component of marijuana, thus ensuring workplace safety while also respecting users’ legal rights. 

Enter Oral Fluid Testing

For the past 40 years, employers have relied on lab-based urine testing, but that is starting to change, according to Current. However, the drug testing industry is starting to growing interest in alternative testing methods, and chief among those alternatives is oral fluid testing because of its ability to detect marijuana’s psychoactive component. 

Oral fluid testing is a method used for drug screening that analyzes a sample of saliva from an individual to detect the presence of drugs or their metabolites. There are two types of oral fluid testing: lab-based and rapid-result testing. Lab-based oral fluid testing involves sending samples to a laboratory for detailed analysis, offering high accuracy but slower results, whereas rapid-result oral fluid testing provides immediate, on-site results with quicker decision-making but potentially lower specificity and sensitivity. Oral fluid testing is gaining usage for several reasons:

• Non-invasive — Compared to blood tests or urine tests, collecting saliva samples is less invasive and can be done in a non-clinical setting without the need for specialized personnel.

• Difficult to adulterate — The direct observation during sample collection makes it harder for the test subject to tamper with or adulterate the sample, reducing the chance of false negatives.

• A shorter detection window — Oral fluid testing typically has a shorter detection window than urine testing. It is most effective in identifying recent drug use, usually within hours to a few days after consumption, depending on the substance.

• Convenience — The ease of sample collection allows for testing to be conducted in various settings, including workplaces, schools, and law enforcement environments.

• Rapid results — Many oral fluid testing kits can provide results quickly, often in a matter of minutes, which is particularly useful for on-site screening purposes.

Rapid Adoption

How much usage is oral fluid testing gaining? Every year, Current Consulting Group conducts a survey of drug testing industry players such as third-party administrators, laboratories, medical review officers, and collectors, Current says. This year will mark its 26th annual survey, and over the years, the survey has asked, “Which drug testing methods do you sell?” Five years ago, 39 percent of respondents said that they offered oral fluid testing. Last year, just shy of 87 percent of respondents said they now offer oral fluid testing, whether it’s lab-based or rapid result.

Also, it’s important to note that more “official” acknowledgment and structure have been built around oral fluid testing, which is helping its adoption. Current notes that in 2019, the Substance Abuse and Mental Health Services Administration, SAMHSA, released its final guidelines for lab -based oral fluid testing of federal employees. Also, last year, the Department of Transportation came out with final regulations for lab-based oral fluid testing among DOT-covered employers. 

Both of those regulations contain language that articulates and outlines the attributes of oral fluid testing, but Current emphasizes that SAMHSA’s language is one of the “most dramatic statements the federal government has ever made about a specific method of drug testing,” he says. 

Specifically, SAMHSA said the following, “The scientific basis for the use of oral fluid as an alternative specimen for drug testing has now been broadly established. And the advances in the use of oral fluid in detecting drugs have made it possible for this alternative specimen to be used with the same level of confidence that has been applied to the use of urine.”

And going back to states with recreational marijuana laws, Current says he believes other states will pass testing laws similar to California and Washington. That will only increase the need for testing methods such as lab-based and rapid-result oral fluid testing so that employers can ensure workplace safety without penalizing lawful users.

“Both are legal in California and Washington as an alternative when those employers want to continue testing for marijuana,” he notes, adding that as states adopt similar laws, “We’ll see employers in safety-sensitive industries looking for ways to continue testing for marijuana … and that will lead them to oral fluid testing as the alternative that allows them to continue to do that.”

This article originally appeared in the April/May 2024 issue of Occupational Health & Safety.