More Post-Accident Drug Tests Coming Back Positive for Marijuana

By: Leah Shepherd, Contributor with SHRM

Employers are discovering more marijuana use in drug tests after workplace accidents, according to new research from Quest Diagnostics.

The number of drug tests performed after an accident that came up positive for marijuana grew 204 percent from 2012 to 2022, coinciding with a trend of more states legalizing recreational cannabis use. The post-accident positivity rate was 7.3 percent in 2022, up from 6.7 percent in 2021. Even among workers in safety-sensitive jobs, post-accident positivity for marijuana jumped from 1.5 percent in 2018 to 2.1 percent in 2022, according to Quest, a medical lab testing company based in Secaucus, N.J.

The positivity rate for all marijuana tests from the U.S. workforce was 4.3 percent in 2022, up from 3.9 percent in 2021. The uptick in the positivity rate was higher in states that have legalized medical and/or recreational marijuana, Quest reported.

“The overall U.S. workforce positivity rate continued to be at a historically elevated level in 2022, even as much of the nation’s workforce returned to the office post-pandemic,” said Keith Ward, vice president for employer solutions at Quest in Overland Park, Kan. “This historic rise seems to correspond with sharp increases in positivity for marijuana in both pre-employment and post-accident drug tests, suggesting that changing societal attitudes about marijuana may be impacting workplace behaviors and putting colleagues at risk.”

Studies have shown that cannabis use can lead to impaired driving ability, industrial accidents and more absenteeism from work, according to the National Institute on Drug Abuse in Bethesda, Md.

“Intoxicating cannabis products, including marijuana, can have a major impact on safety at work and have been proven to slow reaction time, impact memory and impair skills essential to driving. State legalization of the drug creates new challenges for employers,” said Katie Mueller, a senior program manager at the National Safety Council in Itasca, Ill.

Meanwhile, the potency of cannabis products has jumped dramatically in recent years. Delta-9 tetrahydrocannabinol (THC) is the compound associated with intoxication from marijuana. The average percentage of THC in marijuana samples seized by the U.S. Drug Enforcement Administration (DEA) increased from 3.9 percent in 1995 to 14.7 percent in 2018.

“I suspect [the growing positivity rate] has something to do with that, as well as the fact that marijuana is no longer viewed as an illegal drug and is viewed as an acceptable substance like alcohol,” said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.

“Similar to alcohol, the effect of cannabis on a person is dependent upon the dose, duration of time used, the potency, body composition, existing medical conditions, other substances in use and more,” said Laura Oslund, senior risk services consultant for at Sedgwick Claims Management, a Memphis, Tenn.-based administrator of workers’ compensation claims.

“Based on the research, one could surmise that the increase in potency could affect workplace accident rates, if taken during work hours,” said Scotty Benton, vice president of worker’s compensation practice at Sedgwick.

Along with cannabis, more tests were positive for cocaine and amphetamines in the U.S. workforce from 2021 to 2022, while heroin positivity rates declined, Quest found.

Drug Testing

State laws vary on when drug testing is allowed and when off-duty marijuana use is protected. In some states, including California, New Jersey, New York and Rhode Island, employers cannot discipline or fire workers for off-duty use of marijuana. However, employers throughout the country can discipline and fire workers for using marijuana at the worksite or being impaired while working.

“In New York, marijuana testing is not permitted, so employers must just rely on rules prohibiting the use of marijuana at work and prohibiting marijuana impairment at work. In other states, post-accident testing for marijuana still may be permitted, although there are no drug tests that can detect current marijuana impairment, so it is a very controversial topic,” Russo said.

However, one exception is that an employer can drug test an employee in New York if a federal or state law requires drug testing or makes it a mandatory requirement of the position. For example, mandatory drug testing for drivers of commercial motor vehicles and for-hire motor vehicle carriers is lawful.

“Employers understand the importance of a drug-free workplace, and many have a zero-tolerance policy.  Post-accident drug testing is allowed, as it is believed that employers that provide safety incentive programs and post-accident drug testing do so to promote workplace safety,” Benton said.

“Where testing gets dicey is when the testing requirements in a company are not consistently or equitably enforced and applied throughout the workforce. This can lead to claims of discrimination and draw unfavorable attention from the Occupational Safety and Health Administration (OSHA),” Oslund said.

Some employers have stopped drug testing to avoid breaking the new state laws.

Some companies that stopped drug testing quickly saw an uptick in their rates of workers’ compensation claims, accidents, turnover and absenteeism, said Nina French, president of employer and law enforcement solutions at Hound Labs, a Fremont, Calif.-based company that provides a marijuana breath test. “It’s going to cost employers and insurance companies and all of us so much money,” she said.

A study in the Journal for Occupational and Environmental Medicine noted that postal workers who tested positive for marijuana on a pre-employment urine drug test had 55 percent more industrial accidents, 85 percent more injuries and a 75 percent higher absenteeism rate, compared with those who tested negative.

Tips for Employers

In addition to physical accidents, marijuana use by employees could cause damage to an employer’s brand or result in employee mistakes. Employers should focus on risk mitigation and deterring drug use before and during work, French recommended. The ability to deter is “the biggest benefit of drug testing,” she said.

Having a written drug policy that’s reinforced with all workers can be helpful.

“In all states, I recommend that employers have clear written policies and hold regular safety meetings to stress the rules prohibiting the use of marijuana during work hours and the dangers of doing so,” Russo said.

“It is imperative employers take the proper steps to create and maintain a policy that addresses cannabis use, build a safety-focused culture, and educate the workforce to keep all workers safe,” Mueller said.

Companies should train supervisors “on how to recognize indicators of marijuana impairment and what to do in those situations. Reasonable-suspicion testing can help prevent injuries and accidents,” said Grant Goerke, an attorney with Littler in Minneapolis.

Shepherd (May 2023). Retrieved from SHRM.