In 2012, the rate of positive drug tests among American workers was just under 5% and hit a 30-year low. Prompting many to ask themselves if drug testing is even necessary anymore, recently legislation on state-wide levels leaves many new questions unanswered. As a result, 88% of employers will still drug test during an employees tenure – better safe than sorry.

To Test, Or Not To Test?

Though marijuana legalization continues on a state by state level, federal laws still prohibit its use, cultivation, and sale. With federal policy often at odds with states that have gone through with legalization and decriminalization with both recreational and medical usage of marijuana, employers and businesses are put in a difficult position – to test or not to test?

While doing little to manage drug use overall, office place drug testing serves a purpose of the immediate environment, improving productivity, safety, healthy, and trust. Business leaders who drug test enjoy fewer accidents on-site, fewer workers compensation claims, and lowered insurance premiums for everyone. In addiction, worker absenteeism is lowered, as is employee turnover, morale is boosted and communication among management and colleagues is improved.

Yet many workers feel uneasy, or even uncomfortable, with surrendering their bodily fluid for testing, perhaps taking it as a sign that management doesn’t trust them or over concern of any other medical information a test may reveal. From an employees perspective, it’s not so much the drug test itself that’s worrisome, it’s the policies and guidelines, or lack thereof, that raise concern.

As of 2004, one in six companies had admitted to using drug test samples for more than originally intended, purposefully hidden from employees themselves. In these cases, test samples were used to flag potential hires for certain genetic risk factors, a practice that is banned in most states.

The Genetic Information Non-Discrimination Act

Today employees are protected by GINA, the Genetic Information Nondiscrimination Act, but these events have rightfully made employees critical or even distrusting of workplace drug testing.

Smart business leaders understand that a safe and happy work environment does not, and should not, come at the expense of the peace of mind of their employees. Clearly outlined testing policies, transparent practices, and lawfully compliant guidelines protect the privacy rights of employees that were unfortunately infringed upon in the past. Drug test material and results are considered private and protected health information and must be kept confidential, meaning employees cannot share this information, except where legally required, and are prohibited from sharing any other medical information the tests may reveal.

Reasonable Suspicion

Furthermore, employers reserve the rights to drug test – within limitations. Employers may drug test incoming employees, but every single new hire must be tested. Employees under reasonable suspicion may be tested, but only based on facts not speculation and is a difficult policy to fairly maintain. Testing may also take place randomly or after an accident, though only with prior notice and may not discourage the reporting of on-site accidents, respectively.

In the United States, there are almost one million more job openings than there are unemployed individuals, and as legalization of marijuana moves forward, employers may find themselves missing out on candidates with valuable skills by requiring pre-hiring drug testing. One in twenty companies say they are considering removing marijuana from the drug test panel completely.