Northern California companies reconsider marijuana policies as more workers fail drug tests

Published: Oct 10, 2017, 10:17 am • Updated: Oct 10, 2017, 10:17 am

By Julie Johnson, The Press Democrat

A growing number of people in Northern California are failing drug tests required by their employers, prompting some local companies to rethink their drug-free workplace policies in an age of legal marijuana.

The number of drug detections are relatively small, but the statistics indicate more people are using cannabis following voters’ decision last year to legalize its recreational use in California.

Marijuana was detected in about three percent of workplace drug tests taken last year across coastal Northern California, about 1.5 times the national average, according to data from Quest Diagnostics, one of the nation’s largest clinical lab companies.

Overall, use of illicit drugs in the American workforce last year reached its highest level in 12 years, Quest reported, based on its analysis of more than 10 million workforce drug tests.

In Northern California, the nation’s largest marijuana-producing region, employers are increasingly re-examining their discretionary drug-testing policies as companies struggle to fill open positions in a tight labor market.

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“Marijuana lasts for up to 30 days in your system, so how do you distinguish between off-duty use versus on-duty use?” said Valorie Bader, a Santa Rosa attorney who specializes in employment law.

Drug tests aren’t required for the majority of the U.S. workforce, but many companies opt to screen job applicants before they start work.

Just over 5 percent of the roughly 10,000 tests administered last year to the North Coast workforce detected a drug, up from 4.38 percent in 2012, according to Quest Diagnostics. The region incorporates the coastal area from Marin to Humboldt counties.

Most tests, about 70 percent, were administered as pre-employment screens and the remaining 30 percent were random, on-the-job tests, mostly required by federal and state safety laws for jobs like driving a bus.

Marijuana was the most common drug detected, found at a rate of about 3.36 percent, up from 2.38 percent in 2012, according to Quest data.

Amphetamines came next, which include legal prescriptions like Adderall, and were found in 0.69 percent of tests. Methamphetamine, which is mostly used illicitly and rarely prescribed, was found in 0.35 percent of tests. Opiates were detected in about 0.58 percent of tests.

“California has been higher for marijuana than the national average for many years,” said Dr. Barry Sample, senior director of science and technology for Quest.

Sample noted that some positive results detect lawful prescription drug use. California employers are under no obligation to make accommodations for medical marijuana use.

Drug tests are widely accepted as reliable when it comes to substances like alcohol or methamphetamine. But for marijuana, there are limits to what a result says about cannabis use.

A positive marijuana result simply indicates that someone has used marijuana, Sample said. But the tests — including urine, blood and saliva methods — are not yet sophisticated enough to reveal when, how often or how much, according to Sample.

“It took a long time for there to be consensus on impairment with alcohol,” Barry said. “The well-controlled and documented studies for marijuana are in their infancy.”

Cannabis use is becoming more socially acceptable across the United States, where 44 states allow some level of medical marijuana use, according to Americans For Safe Access, a national nonprofit advocating for medical marijuana use and research. California was the first state to pass medical marijuana laws two decades ago, and last year California voters legalized the recreational use of cannabis by adults.

“If they are showing an uptick (in marijuana-positive drug tests), it could be people are feeling freer to use it,” said Ellen Komp, deputy director of California NORML, a cannabis advocacy and lobbying group. “It doesn’t mean the workplace is less safe, because you’re picking up usage off the job.”

On Thursday, the Personnel Association of Sonoma County is convening a special meeting for human resources directors to discuss marijuana and the workplace. Bader, one of two lawyers making presentations, will focus on options for companies curious about axing zero-tolerance policies.

Some companies are considering “don’t ask, don’t tell” policies that focus on workplace performance, Bader said. She recommends companies write clear policies explaining what managers can do if they suspect a worker is under the influence of a substance on the job.

A zero-tolerance policy “is theoretically a great decision, but on a practical note, particularly in our county and everywhere else, it’s very difficult to get enough bodies in positions, especially entry-level ones,” Bader said.

Sonoma County has the sixth-lowest unemployment rate in California. The jobless rate was 3.9 percent in August, the lowest level for the month in 17 years.

Companies are increasingly interested in excluding marijuana from the panel of substances examined in discretionary drug tests, said Pri Murphy, national account executive with Novato-based Employment Screening Resources, a background screening firm that works with companies nationwide.

Murphy, president-elect of the Personnel Association of Sonoma County, said the HR group decided to convene a meeting to discuss marijuana issues because the topic was listed as a top concern among its members on a recent survey.

“The dialogue is certainly louder.” Murphy said. “We saw it start with employers in Colorado where for years I’ve had employers there say to me, ‘Don’t include it on our panel, we don’t want to know.’?”

Her advice is to contact a trusted workplace lawyer first.

“Many employees are saying, ‘It’s my right to use this. I have a (medical marijuana) card, and (cannabis) helps with A, B, and C,’?” Murphy said. “There are a lot of employers sympathetic (to that).”

But there are laws requiring employers to provide a safe working environment, and those are the regulations that often propel a company to use drug tests as a job-screening tool, according to Michelle Lee Flores, an employment law expert with Cozen O’Connor in Los Angeles.

Flores said the way marijuana remains detectable in the body long after the buzz wears off is a challenging issue for employers in states where it’s lawful to use the substance away from work.

“I certainly think a lot of people are scratching their heads, both on the employer and employee side, saying ‘What do we do?’?” Flores said.

Anecdotally, companies in Mendocino and Lake counties are making accommodations to recognize the prevalence of marijuana in the region.

Santa Rosa attorney Jarin Beck helps companies in Mendocino, Lake and Sonoma counties establish workplace policies and employee manuals. Beck said none of his clients — which run the gamut from five-person outfits to firms with several hundred employees — screen potential employees with drug tests unless it’s required by law.

“Especially in Mendocino and Lake counties, it’s pretty prevalent, so you’re seeing employers lean toward not having drug testing as a requirement because it will shrink their workforce,” Beck said.

Raley’s supermarkets employs about 11,000 people at its stores in California and northern Nevada, including about a half-dozen stores from Petaluma to Ukiah. The company follows federal and state requirements for drug testing workers in specialty positions, like pharmacists and truck drivers, according to company spokeswoman Chelsea Minor.

But when those laws don’t apply to a person working at the courtesy desk or cash register, the company does not require a pre-employment drug test, Minor said.

However, the company reserves the right to drug test existing employees when there is reasonable suspicion a worker has been intoxicated on the job and unable to perform his or her duties. The company’s human resources department cannot recall a recent time when the policy was used to handle a worker performance issue, Minor said.

“That is very, very infrequent,” Minor said.

About a dozen states with medical marijuana laws have included employee protections in the legislation. But there are no protections for California workers who use cannabis for medical or recreational purposes, Komp said. California NORML has begun pushing for legislators to take up workplace protections for people who engage in a lawful off-duty conduct — like smoking marijuana.

“We’re just trying to get California caught up with Arkansas on this issue,” Komp said.

Information from The Press Democrat (Santa Rosa, Calif.)

Topics: California, drug testing, employers drug testing policies, human resources, medical marijuana