Think legalizing recreational marijuana will mean the end of employer drug tests? Think again

On Wednesday, the bill to legalize recreational marijuana use, HB 150, passed the Delaware House Health & Human Development Committee in a 10-5 vote. It was just the first step in making the legislation into law, but the business community is already preparing for its likely passage.

Case in point: A large chunk of the virtual Manufacturing Conference this week was devoted to a Legalized Marijuana Roundtable, moderated by Rustyn Stoops, executive director of the Delaware Manufacturing Extension Partnership.

The conversation featured industry leaders from states that already have legal recreational marijuana: Thomas Sanford, CEO of Oregon’s Eagle Precision Sheet Metal and Turk Manufacturing; Mitch Magee, director of global advanced manufacturing technology for California’s PPG Aerospace; and Anthony Macherone, senior scientist with California’s Agilent Technologies.

Stoops began by reading the Delaware State Chamber of Commerce position on the issue:

“The State Chamber position on the legalization of marijuana can be summed up this way: We respect the rights of the adults to do what they want, when and where it’s appropriate. Employers, however, want to have the ability to preserve their own unique policies on this topic, and prefer to wait for technology that provides a spot test for impairment and immunity from liability.”

In short, many companies in Delaware, especially in industries like manufacturing, won’t be getting rid of drug testing for marijuana, even if HB 150 passes. Most companies have some sort of policy on employees under the influence during work hours, including intoxication by alcohol, so marijuana being legal doesn’t mean employers can’t fire you for using it. In fact, if a company has any federal contracts, it is required to have a drug-free workplace (and marijuana is still federally an illegal controlled substance).

The problem employers are having is that, unlike alcohol, where a person’s blood alcohol level can be checked on the spot — and the glasses of wine an employee had on Saturday won’t show up if they’re actually sober at the time — the marijuana drug tests used by employers generally read positive if the employee has used it in the previous 30 days. And companies in states like Oregon and California are using the tests, often as part of the hiring process, and sometimes randomly.

That’s where the State Chamber’s preference for waiting for a spot test comes in. Companies are concerned about safety and liability, and some don’t intend to change their alcohol and drug policies at all.

As it is now, people make the choice not to use marijuana in order to work for companies that drug test, and it looks like people will continue to have to make that choice even if recreational marijuana is legal.

There are alternatives to the hair follicle, urine and blood tests that have kept recreational after-hours marijuana users out of jobs in various industries: Field sobriety tests, used to determine intoxication in DUI cases, are used by some companies when there is reason to believe an employee is intoxicated (though they only somewhat accurately detect whether someone is currently high on marijuana).

More promising, startups from California to British Columbia are in a race to develop a marijuana breathalyzer that detects usage within two hours — which could be a game changer for employers, and for potential employees who use legal marijuana to unwind after work, but never before or during.