Have you ever been drug tested at work?

In order to provide protections for cannabis users at work who “fail” a drug test, cannabis activists in Oregon currently have identical bills under consideration in the Oregon House (House Bill 2655) and the Oregon Senate (Senate Bill 379). These are very important protections.  Allowing the termination of an employee when they are not impaired, simply because they used a legal substance on their own time, should be viewed as a fundamental violation of that citizen’s rights.

Of course, if an employee is using a disabling substance (e.g., alcohol, cannabis) at work and is established as impaired, it should be allowable for an employer to initiate terminate that employee. However, to allow the use of a drug test that does not measure impairment to serve as the basis for an employee’s termination should be viewed as totally illegitimate.

Alcohol testing

Cannabis users are faced with the need for protection such as this because of the history of alcohol testing for driving impairment and per se laws. In 1982 the federal government made funds available to states that passed .08 BAC per se laws.

This was reduced from the previous BAC = .15 level passed nationally in 1938. All states now have either a blood alcohol concentration (BAC) limit of .08 or .10, above which it is illegal to drive. Per se laws mean that it is illegal to drive with that level of alcohol in one’s system.  This is true whether a person is impaired or not. The reason for this is that, according to the National Highway Traffic Safety Administration, “Virtually all drivers are substantially impaired at .08 BAC.” While there are a number of scholars who argue that this is not the case, it is the established limit now.

What these alcohol per se laws have done is to establish the precedent of measuring a biological substance and concluding from those results that impairment is demonstrated. The most recent manifestation of this approach is the race to develop a cannabis “breathalyzer.” What all these efforts have in common is the assumption that the presence of a THC molecule in a person’s body is evidence of their impairment.

In the case of cannabis, however, this is demonstrably false. The 2017 U.S. NHTSA Report to Congress acknowledges that THC blood levels do not predict impairment and have no scientific basis (p. 28). Similarly, saliva and urine tests for THC measure the presence of a molecule in the body but do not test whether the person is impaired. This precedent paved the way for the growth of the drug testing industry that offers pre-employment testing and random drug testing. For cannabis, this is simply a test of users of cannabis, not those impaired by cannabis.

Paradigm shift

As a society, we need to move away from biological drug testing to measuring actual impairment. Drug testing for cannabis does not measure a person’s impairment, just their past use of cannabis.  And, that impairment could even be weeks prior to the testing. Drug testing does not reduce drug use. What is needed is a paradigm shift in thinking about impairment testing.  You should check out this article in the Hartford Courant.

The cannabis industry is in its early stages. Unless protections for cannabis users are put into place such as the bills being considered in Oregon, the industry supplying the cannabis is threatened.  Users can face potential termination at work and legal consequences if they drive, regardless of whether they are impaired or not.

As the director for safety of a steel mill told me as he imagined pitching an actual measure of impairment to his workers: “Wouldn’t you like to know that the guy who is sending 2 tons of steel your way has all his wits about him?”

Instead of using drug testing to try to prevent employees from using a legal substance, and instead of dropping testing for cannabis impairment that could reduce safety, why not measure actual impairment?