The War on Drug Tests

Weed is now legal for recreational use in two states and for medical use in 23—but cannabis consumption can still come back to haunt you if it shows up in your pee. That's because, despite legalization, few companies have budged on their drug testing policies to accommodate those who toke, medically or otherwise. When I asked the major companies in Washington—Amazon, Microsoft, Expedia, and Nordstrom—if they had plans to adapt their drug testing policies, none of them said yes (although a few shut me down with "no comment," which is basically another way of saying no). It's been reported that one in five companies in Colorado have adopted even tougher policies since marijuana became legal; earlier this week, the New York Times noted that many companies have retained their pre-employment drug testing policies for fear of "having a stoned workforce."

The Times brought up the case of Brandon Coats (who we wrote about last year), who was fired from his job at Dish Network after he failed a random drug test. Coats, who lives in Colorado, had a prescription for medicinal marijuana to deal with the effects of a car crash that left him partly paralyzed—but he was fired anyway, with little recourse.

But wait, you're probably thinking, how can that be legal? It's legal, as it turns out, because most states don't have clear policies or precedent for dealing with the increasingly common situation of legal drugs showing up on employee drug tests.

Take Sue Bates, who in 2010 was fired from her job at Dura Automotive Systems after she tested positive for hydrocodone—a narcotic that she was prescribed for back pain. When she offered her prescription as an explanation for the test results, Dura argued that it was impossible to determine if she had been using the medication as prescribed or if she was a substance abuser, which would presumably affect her job performance. A similar thing happened to Chassity Brady, a Georgia woman who was fired when her bipolar medication showed up on a drug test; and Tim Sparr, a police officer in Arizona, who was let go for failing a drug test (he had been taking oxycodone, which he was prescribed after being shot in the arm on duty).

In 2011, Bates and six other Dura employees sued the company, and won when a judge ruled that their drug testing was not "job-related and consistent with business necessity." Brady also sued, in 2013, and won.

But it's not clear that marijuana users will have the same recourse. Some states—Connecticut, Arizona, Delaware, Illinois, Maine, and Rhode Island—have made it illegal to discriminate against medical marijuana users, but other states have ruled that drug discrimination is perfectly legal. In Florida, where an HIV-positive man named Gaylus Bailey was fired for using medicinal marijuana prescribed to him to alleviate HIV-related symptoms, a judge ruled that the company was well within its right to fire him, prescription or no prescription. Colorado, where Brandon Coats is taking his case to the state's Supreme Court later this month, will likely set a legal precedent once his case is decided—for better or for worse.

Part of that problem stems from marijuana's wishy-washy legality—while it's legit in many states, weed is still illegal on a federal level, giving employers ground for discriminating against those who use it. Many employers have also equated marijuana use with having zombie-stoned employees, which makes about as much sense as saying that unless you're a teetotaler, you're going to be drunk on the job. One employer in a Seattle-based company dismissed the legitimacy of smoking weed with the argument: "Yeah, it's legal, just like alcohol, but you can't have it in your system."

This is exactly the kind of mixed message that employees are given about how their (legal) drug use can affect their employment. And even with piecemeal state legislation, it's not a problem that looks like it's going away any time soon. It's estimated that 90 percent of Fortune 1000 companies and 62 percent of all employers require drug testing—which is remarkable, considering that drug tests don't do what they're supposed to. Here are a few reasons why:

• They aren't accurate. We've all heard the lore about how eating too many poppy seeds will make you test positive for opiates—and while it seems crazy, some research suggests that it's actually true. It's estimated that about one in every 20 people will have inaccurate results from their drug tests (in other studies, it's estimated to be as high as 11 percent), and the inaccuracy is more likely to yield a false-positive than a false-negative.
• They're easy to fake. In addition to the fact that tests often yield bogus results, it's pretty easy to use bogus urine. Unless there's someone monitoring you during your drug test (which is pretty uncommon, unless you're in prison or something) it's well-established that you can bring a baggie of someone else's pee, incubate it by holding it near your body, and pour that into the cup.
• They target marijuana users. Most pre-employment drug tests can be scheduled during a time that's convenient, so most people have at least 48 hours to get whatever drugs they've just taken out of their system. Within 48 hours, your body can usually get rid of amphetamines, alcohol, barbituates, cocaine, codeine, morphine, LSD, and sometimes, even PCP. Depending on how often you consume marijuana, it can take between a week and 30 days for weed to leave your system. That means that even the occasional puff of a joint can show up on a drug test weeks after you've smoked. That means you're more likely to pass your drug test if you snorted coke over the weekend than if you smoked a joint.
• They don't deter drug use. If you use one of the drugs that leaves your system quickly, then there's a good chance you'll resume using after your drug test. If you're a marijuana user, you can use the aforementioned pee-baggie method. As our late prison correspondent so eloquently put it: "I have pissed in a cup at least 100 times, and I still haven't learned a damn thing, except that the taxpayers sure waste an assload of money on these tests."
• They're expensive. They really do cost an assload. On average, drug tests cost between $20 and $60—which doesn't seem like that much, but when you're talking about gigantic companies or entire states, that shit adds up. Utah, for example, spent $30,000 on drug testing welfare recipients between 2012 and 2013. Only 12 people tested positive.
• They're not catching that many people. Like the Utah example suggests, only a very narrow slice of people test positive on their drug tests. For workplace drug testing, about 3.5 percent of drug tests run positive; for welfare recipients, that lowers to two percent.
• They're an invasion of privacy. There have been various legal disputes about whether or not drug testing invades a person's privacy in a constitutional sense. But in an even simpler way, drug testing is flat-out discrimination against recreational drug users. To say that a person who recreationally smokes marijuana—or uses cocaine, or does ecstasy, or trips on acid—is unqualified for a job is like saying someone who binge-drinks on the weekends is unqualified. Does their substance use affect the job? Maybe. But a zero-sum drug test can't tell you the answer.

Ironically, the New York Times hasn't changed their drug testing policy yet, even after their Editorial Board published a six-part series arguing that marijuana should be legal for recreational use in all states. When they were asked why they still discriminated against weed-smoking employees with their pre-employment drug tests, a Times representative answered: "Our corporate policy on this issue reflects current law"—which is a strange thing to say, given that medicinal marijuana is legal in New York and there are zero laws that require employers to drug test their employees in the first place.

The US Department of Labor makes this fact perfectly clear on their website, where they note that while a small handful of federal employees are required to be drug tested, the majority of employers in the US have no obligation to administer drug tests. So if companies are clinging to drug testing policies, then it's a morality issue, not a legal one.

America's love affair with drug testing dates back to the 80s, when the Reagan Administration recommended employers to use them as part of the War on Drugs. Before this point, demanding to have someone's pee in a cup or a piece of their hair was considered a massive invasion of privacy. In 1988, the Drug Free Workplace Act required any company that had a contract with the federal government totaling $25,000 to uphold a "drug-free workplace," which encouraged periodic drug testing—but even then, didn't require drug tests for most employees. A White House report from 1989 rationed, "Because anyone using drugs stands a very good chance of being discovered, with disqualification from employment as a possible consequence, many will decide that the price of using drugs is just too high." This was the same kind of fear-mongering used with the DARE campaigns of the same era, which delivered a clear message to young folks: If you do drugs, you will ruin your life.

In 1991, the Omnibus Transportation Employee Testing Act required drug and alcohol testing for people who had safety-sensitive jobs, like flying a plane, driving a train, or driving a truck. And that makes sense—no one wants to ride in a vehicle driven by someone who's drunk, high, or otherwise incapacitated. But pre-employment drug tests were also becoming ubiquitous, even for jobs that had no safety requirement, and even though there was no state or federal law that required them.

What happened? Hoffmann-La Roche, a Swiss pharma giant, launched a massive lobbying campaign to "mobilize corporate America to confront the illicit drug problem in their workplaces." This happened in 1989, and thousands of employers signed up.

Soon thereafter, states began adopting Drug Free Workplace Programs, which incentivize employers to drug test their employees by lowering their workers comp premiums if they do. This coincided with when Hoffmann-La Roche became a paying member of the American Legislative Exchange Council, a "partnership" between conservative lawmakers and private sector representatives that, together, created legislation. Since then, many states have also expanded their legislative reach to require drug testing for welfare recipients—a policy which is expensive, intrusive, and humiliating.

It's not just a conservative agenda, though: President Barack Obama's 2012 Drug Control Policy report encouraged drug-free workplace programs, arguing that they are "beneficial for our labor force, employers, families, and communities in general." Included in this same report was a behest to Congress to give $20 million for the National Youth Anti-Drug Media Campaign—which had been defunded in 2003, after spending $1.4 billion in tax dollars, because it flat-out didn't work.

To be sure, drug abuse is a real thing, and that seems to be the impetus behind the continuing drug testing policies in Washington and Colorado, where the risk for "a stoned workforce" is arguably higher. The idea that being stoned on the job would jeopardize workplace performance is not unfounded; indeed, the US Department of Labor estimates that 10 to 20 percent of employees involved in fatal on-the-job accidents tested positive for illicit drugs and alcohol. The problem is, urinalysis doesn't offer any information about when the person was using a drug, how much they were using, or what effects it had on their cognitive functioning—and there's clearly a difference between getting high in your off-time and getting high at work.

If employers want to know if their employees are capable of doing their jobs, there's no point in testing for traces of a drug lingering in someone's system (something that happened in the recent past) when they could, instead, test an employee's cognitive functioning while they're actually at work (something happening in the present). This is the idea behind impairment testing, which measures a person's impairment through a series of cognitive tasks, and can help determine if someone is drunk, high, or otherwise impaired at the present moment, while they're doing their job.

After all, if the point of drug testing is to have a more productive workforce, then employers should start looking at actual productivity levels—and stop looking at little plastic cups of pee.

Follow Arielle Pardes on Twitter.