Drug Testing Policies in the Pot Age

By Benjamin P. O’Glasser
Bullard Law, Portland law firm

By Michael G. McClory

This week’s (fictional) mailbag question comes to us from Macy Gimbel, who is the human resources manager for Gadget Garage, a thriving inventions business in East End. Macy has a couple of questions related to pre-employment drug testing and marijuana. Here is her question.

Macy’s Question:

I work hard in life. Every day I show up to the office and do my best to perform the HR function at Gadget Garage; we invent, manufacture and market gadgets. I’m sure you’ve heard of us and most likely you have used some of our innovative products. Is the Foonk ringing any bells? (It is better than a spork; with the flip of a switch your fork becomes a spoon.) What about Mireal? (Milk and cereal are on different sides of the same carton; pull the tab and you have a drinkable bowl of cereal ~ or if you want you can use a Foonk.)

Anyway, HR is not easy. In one corner of the Garage we have the “creative” minds who dream up the gadgets that America needs. (Some of these folks are a bit out there, if you know what I mean. Some kid named Ddarrel ~ that is how he spells it ~ missed half a day last week because he got lost playing Pokemon Go.) In another corner we have the hucksters who convince America that they need these gadgets. (Don, who is a total huckster, could sell Mireal to a vegan.) And in yet another corner we have the money folks (accountants and budgeteers), and they like to place me right in the middle of all of this. (Why are we hiring so many people? Why are there comic books in the employee lounge? Why are we advertising in a medical journal?)

Enough background. Here is issue. And before you ask, no, I did not make it up.

Last week we made a conditional job offer to Bud Sparks (fake name – confidentiality) for a position on our innovation squad. We planned to put him with those working on consumables. Bud interviewed well, has some funky experience with chocolate syrups, and seemed excited. We conditioned the offer on a background check and pre-employment drug test. The background check was clean, but he failed the drug screen – positive for marijuana.

I reluctantly called Bud. That is our third pre-employment positive this month and we do not do much hiring. I told Bud that he tested positive for marijuana and that Gadget Garage was rescinding the conditional offer. Bud said that the water near his house has been contaminated with THC, that he is a big drinker (poor phrasing), and that is the reason for the positive test result. Bud said he would take a polygraph test if I wanted and he begged me not to rescind the job offer.

I told Bud that I would have to get back to him. It is the first time I have heard that excuse and it seems just odd enough that it could be true. So, I have two questions for you. First, should I give Bud a second chance to take the test? Second, given that we keep losing otherwise good candidates to pot, should Gadget Garage just do away with the pre-employment testing for marijuana? I’d appreciate your thoughts.

The Bullard Edge’s Response:

You may not realize it, Macy, but the whole “THC in the water” story is real, at least in Hugo, Colorado. News outlets have been reporting that the Hugo water supply tested positive for THC. Law enforcement is investigating whether someone intentionally tainted the water supply. For the time being, residents are being told not to drink the water.

That brings us to your first question. You want to know whether you should give Bud a second chance to test clean. I assume that your real question is whether there is any reason you should believe Bud’s excuse for his positive drug test. To put it bluntly, we do not think so.

The Hugo, Colorado situation is somewhat unique. We are unaware of any other localities with tainted water supplies (and certainly not in East End where Gadget Garage is located and where we assume Bud lives). It seems that you have four options for responses.

– Rescind the job offer. Bud tested positive; end of story.
– Investigate the story. Ask Bud for evidence that the water supply was tainted and that it could be the cause for his positive test.
– Ignore this test result and let Bud retest.
– Remove marijuana from the pre-employment drug testing program (your second question).

The Bullard Edge is not going to tell you which option to follow. That is your call. We will comment briefly on each option, though.

The first option is safe and reasonable. Bud tested positive, which violates company policy. You indicated that the company has a history of strictly following its policy (two other rescinded job offers this month). We think that the positive drug test is a solid basis for rescinding the job offer.

If you are inclined to follow another option, you may want to consider the second option: investigation. You have to admit that Bud’s story seems farfetched. Before we would want to hire him, we would want to investigate to make sure that Bud is not lying about his positive test. Dishonesty would be a separate reason for rescinding the job offer.

The third option does not seem to make a lot of sense. Gadget Garage has a policy. If you fail to follow it this time, then it may be riskier to follow it in the future. For example, consider the possibility for creating a discrimination claim. You said Bud is the third positive this month and that offers to the other two candidates were rescinded. If we assume that Bud is a white male and the other rescinded candidates were minority or female, your treating Bud better than them could set up a claim for race or gender discrimination.

The fourth option goes to your second question: should Gadget Garage just do away with the pre-employment testing for marijuana? I assume from the way you asked the question that the company would continue to test for marijuana under the “reasonable suspicion” portion of the drug policy.

We understand the frustration you feel at losing otherwise acceptable candidates due to a positive pot test. With marijuana being legal for recreational use in Oregon and Washington (and elsewhere), there is a direct impact on the labor market. People are using marijuana, including people who are seeking employment and people who are employed. Employers who include marijuana in their pre-employment drug testing programs should expect to see a higher percentage of positive tests in 2016 than they saw in 2014 or earlier. This makes it more difficult for some employers to find employees.

Because of this, we understand why some employers are giving thought to removing marijuana from their pre-employment drug testing programs. While employers subject to certain laws must have policies that completely prohibit marijuana (such as DOT regulations and the Drug Free Workplace Act), other employers may consider whether to have policies banning marijuana. Here are a couple of thoughts.

– Medical marijuana laws do not require accommodation. They do not require employers to modify jobs or modify policies as a form of reasonable accommodation.

– The same is true with respect to state laws that authorize the personal/recreational use of marijuana. Employers do not have to change because of those laws.

– Obviously the evolving marijuana laws make it likely that more applicants and employees will test positive for marijuana. This can make it more difficult for an employer to fill a position.

Employers who choose to modify their pre-employment drug testing programs should know what it is they want to accomplish and how much of their policy they want to revise. For example, if an employer wants to eliminate marijuana from the pre-employment drug testing program, except where the employment position is safety sensitive, then the employer will need to make sure that the revised policy clearly says what the employer wants it to say.

Gadget Garage should determine whether it is covered by a law that requires it to have a drug policy that prohibits marijuana. You should confer with counsel for that. If not, then the company will have to decide for itself whether it wants to modify its drug policy. If it decides to modify its policy, it should consult with counsel.

I hope that helps. Please let us know what you decide to do.

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