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The Wall Street Journal reports that on a new study from Quest Diagnosticssaying that "as legal marijuana expands in the U.S., a record share of workers is testing positive for the substance in workplace drug screening … Of the more than six million general workforce tests that Quest screened for marijuana in 2022, 4.3% came back positive, up from 3.9% the prior year. That is the largest marijuana positivity rate since 1997."

According to the story, "More than two-thirds of U.S. states have legalized recreational or medicinal use of marijuana. That push has some employers questioning whether to keep testing for the drug, as they weigh safety risks and legal liabilities.  The U.S.’s patchwork of rules makes employer oversight a minefield, said Scott Pollins, an employee-rights lawyer in Philadelphia. Workers might live in areas where marijuana is allowed and still be subject to federal testing requirements, or they may work for a company with a policy that subjects employees to testing. Employers should be careful about punishing workers based on a positive marijuana test, he added."

One cautionary note:  "The percentage of employees that tested positive for marijuana following an on-the-job accident rose to 7.3% in 2022, an increase of 9% compared with the prior year. From 2012 to 2022, post-accident marijuana positive test rates tripled, tracking with widening legalization."

The story also points out that during the past year, positivity rates "for certain classes of opioids and barbiturates declined," while "more tests also came back positive for amphetamines. Positive tests for amphetamines rose to 1.5% in 2022, up from 1.3% in 2021, according to Quest, which doesn’t differentiate between prescribed medications and illicit drug use."

KC's View:

This has to be such a tough one for companies and their HR departments - even in places where marijuana is legal, they want to be careful about employees who are imbibing before they get to work and may see their performance affected.

I wouldn't want my employees stopping for a few drinks before coming to work, and I'd feel the same way about marijuana.  But there are civil liberties involved here, and I suspect it is going to get complicated.