You may want to buckle up for this one! We're reviewing workplace policies around drug testing -
According to Time, an increasing number of companies are moving toward eliminating workplace drug testing. Reasons for this change include efforts to attract candidates amid a global labor shortage, targeted efforts to improve equity in the workplace, and responses to increased legalization of certain substances at the state-level. Let’s jump in!
The current state of drug use, abuse, and legality
While marijuana remains federally illegal, many states have approved the use of marijuana medically and recreationally, and signs point to federal legalization in the near future. Moreover, with organizations shifting to a more of a remote-first policy en masse, the legality around holding different employees to different rules based on their geography and what is ‘legal’ in their state, versus the home base of the company, becomes very messy very quickly. If your company is headquartered in a non-legal state, but you hire an employee from a legal state and their drug test comes back positive for marijuana, the employee hasn’t technically broken any law – so what do you do from there? This is a headache that many organizations are opting out of dealing with. Vice reports that recently, Amazon, the 2nd largest employer in the United States, announced that they won’t be testing for marijuana as part of their pre-employment process. 45,000 other employers worldwide have similarly followed suit.
Moving past marijuana, several medical research organizations have started using psychedelic drugs, including MDMA (ecstasy), LSD (acid), and psilocybin (a key ingredient in magic mushrooms) as a treatment for PTSD, particularly in veterans. The drugs have showed incredibly promising results, with Smithsonian Magazine reporting that “over the past few years, studies have suggested that just a few doses psilocybin or MDMA combined with therapy may help patients with PTSD or other mental illnesses. The results have been promising enough that the U.S. Food and Drug Administration (FDA) has designated both treatments as breakthrough therapies—a priority status given to promising drugs designed for an unmet need.”
Veterans specifically are underserved as a group in the United States, and a target of many diversity recruiting campaigns. However, if veterans are being counted out because of their legal and medical use of substances that have been proven to be effective and safe for use, we will see that any efforts to implement diversity hiring practices would be significantly impacted by mandatory drug testing.
While the use of many drugs has historically been viewed as negative, we have seen a significant shift in recent years that brings “illegal” drugs into mainstream health and wellness, backed by tons of great research and promising studies.
The Netflix series How To Change Your Mind is a docuseries that explores “the history and uses of psychedelics, including LSD, psilocybin, MDMA and mescaline”, and has received largely positive reviews (100% on Rotten Tomatoes, 8/10 on IMBD) in part due to the examination of the beneficial use of psychedelics under the supervision of a medical professional. One reviewer notes that this approach to using psychedelics “is not a whole heck of a lot different from other drugs that have been put under the “controlled substance” banner over the past half-century.” The author and narrator, Michael Pollan, first and foremost has been successful in reopening discussions about psychedelics, which have been largely stigmatized in the U.S. since the 1970s. Destigmatizing the topic is a great first step in restarting exploration of the [proven] benefits of these substances, especially for individuals suffering from anxiety, depression, and PTSD (6% of the general population; 83% of veterans and active duty service members).
What are drug tests good for?
SHRM addresses some of the pros and cons of drug testing in the workplace and highlights the necessity of drug tests in some cases. “You have to consider the needs of the business, in addition to any applicable state laws…some employers are federal contractors or hire drivers and have to follow specific drug-free workplace laws.” Essentially, it matters a lot what type of role you’re looking to fill and how important risk mitigation is for that position and the company. Drug testing can be very effective in preventing accidents, which is very important and relevant if employees are working with heavy or dangerous machinery, climbing on top of buildings or tall structures, or if a large part of the position requires driving.
In situations where there isn’t a huge need for risk mitigation in that way, such as in positions that mainly require working on a computer, drug testing might not be necessary or beneficial.
For situations where workplace drug testing is truly necessary, SAMHSA (Substance Abuse and Mental Health Services Administration) provides resources on how to plan and implement a drug-free-workplace program.
Senior Policy Counsel at the American Civil Liberties Union, Aamra Ahmad, notes that mandatory drug testing typically isn’t done as a response to unprofessional behavior, yet “can still cost the person their job, even if the use was legal, or for a medical purpose, or took place days or weeks earlier and doesn’t actually impact job performance.” Additionally, Carl Hart, Neuroscientist and Chair of Columbia University’s Psychology Department, notes that, if the goal is to ensure that employees aren’t intoxicated in the workplace, a drug test typically isn’t going to give you that information in real time, so they might not be very useful in some situations, because there won’t be any immediate action the employer can take.
And if we’re looking at how illicit drug use can potentially affect performance, there are several other factors that can impede workplace productivity, such as a hangover, lack of sleep, dehydration, emotional duress, and prescription medication – but we don’t test for any of these. Drug tests show us past behavior only - they can’t accurately predict future behavior.
How are drug tests discriminatory?
We’re probably all aware of The War on Drugs – President Nixon’s campaign to disrupt Black communities and anti-war leftists. In an interview with Harper’s Magazine, John Ehrlichman, Assistant to the President for Domestic Affairs under President Richard Nixon admitted to the political – and mostly racist – drivers behind their War on Drugs -
“You want to know what this was really all about? The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
With such heavy ties to overt racism, there is no way for drug testing to be unbiased or fair. Even with the best of intentions, the result of mandatory drug testing will have a disproportionate and negative impact on Black people and people of color. And without the best intentions? That’s how we get extreme disparity in repercussions for positive tests. Detox.net surveyed over 1,500 people in 2018 and found that “Black people were more than twice as likely to face repercussions for failing a drug test than white people.” Yale School of Medicine also found evidence of racial disparities in drug testing in a 2013 study. This study found that, in workplaces with higher numbers of racial and ethnic minorities, drug testing occurred more often.
Beth Galetti, Senior Vice President of HR at Amazon recently explained why the company is moving away from drug testing citing, “pre-employment marijuana testing has disproportionately affected communities of color by stalling job placement, and by extension, economic growth, and we believe this inequitable treatment is unacceptable.”
[Read the full statement here]
Benefits News and Time dive into the emphasis on morality, not legality, in drug testing. Drug tests don’t test for sobriety from alcohol or prescription drugs – although both substances can be (and often are) abused. A drug test allows us to make a subjective and moral judgment on “how socially acceptable a person’s recreational habits are” but doesn’t provide any objective evidence on a person’s ability to perform their job.
Carl Hart shares another thought-provoking scenario related the question of drug tests and legality: “Think about it. There are people going to work who are running a little late and they speed. Do we care? Of course not. We care about whether they get there on time or not. But they exceeded the speed limit, which means they broke the law. Nobody says anything about that. So why are we selectively focusing on drugs?”
How are drug tests invasive?
The ACLU reports that, in most cases, a person is observed during process of collecting urine – the entire process. One woman shared, "I waited for the attendant to turn her back before pulling down my pants, but she told me she had to watch everything I did. I am a 40-year-old mother of three: nothing I have ever done in my life equals or deserves the humiliation, degradation and mortification I felt." - From a letter to the ACLU describing a workplace drug test.
After collection, the sample is sent to the lab for Urinalysis. This test reveals not only the presence of illegal* drugs, but also the presence of prescription medications, physical and medical conditions, and pregnancy. Why is this an issue? Because of those who routinely abuse this system, like the Washington D.C. Police Department, who admitted in 1988 that they “used urine samples collected for drug tests to screen female employees for pregnancy - without their knowledge or consent.” That’s a HUGE invasion of privacy.
The inaccuracy of the tests, and the potential for human error, are two other huge issues with drug testing. Here are 3 known cases of error with drug tests:
1. Depronil, a prescription drug used to treat Parkinson's disease, can show up as an amphetamine on standard drug tests.
2. Over-the-counter anti-inflammatory drugs (e.g., Ibuprofen) can return a positive for marijuana.
3. Poppy seeds found in baked goods can produce a positive result for heroin.
The tests themselves are not perfect and, if even 5% of the 9 million tests administered each year (in the U.S.) resulted in a false positive, 450,000 people could be fired, denied jobs, or otherwise have their lives upended – because of a mistake.
The solution
This isn’t just a local problem. Vice reports that outside of the United States mandatory drug tests have contributed to a lack of applicants for open positions. A poll done in Western Australia showed that small businesses especially are having increased difficulty in filling their open roles since the Australian state government introduced required drug testing policies in late 2020.
There may be a day in the future where we have an option to do real-time, in the moment drug testing on site in the workplace, where the results come back in a matter of minutes, and where the test accounts for a wider range of substances, including alcohol and prescribed medications. But that isn’t available now, and even if it were, we would have to ask if it would be feasible. How much time and money would it cost us to do daily drug tests for everyone before every shift? How many employees would be willing to forgo their right to privacy and bodily autonomy to prove that they could do their job every day despite having already proven that they can do their job just fine? These are questions that we, as employers, must keep in mind when setting our drug testing policy.
The future may be to do away with drug testing for a lot of roles. Doing so will prioritize making judgments about someone’s ability to perform based on their performance – not on their lifestyle or how they choose to spend their time away from work. As employers, it is in our best interest to be inclusive and to re-evaluate the inherently inequitable systems and processes we’ve been grandfathered in to using. Removing mandatory drug testing can be a great way to attract more candidates for open roles, and if the position doesn’t require driving, working with dangerous or heavy machinery, or working in other potentially dangerous situations, it can remove a lot of headaches for employers.