In a quarterly forecast released in late May, the Oregon Office of Economic Analysis mentioned almost in passing an issue that could complicate the Pacific Northwest state’s recent track record of robust economic growth:
At least anecdotally, more firms are reporting trouble finding workers who can pass a drug test. Given the tight labor market, and legal recreational marijuana up and down the Left Coast, these reports are a bit surprising. It may be that the pool of available applicants has shifted; that individuals who can pass drug test already have a job. It may be for insurance‐related reasons that employers are ensuring they have a drug‐free workplace, even if it means monitoring their employees behavior on their own time. However it is possible that these anecdotal reports reflect a broader increase in drug usage that would be both an economic and societal problem.
Oregon’s unemployment rate is currently hovering at around 4.1 percent, the report notes, just above the historically low rate nationwide. With such a tight labor market overall, the need for employees who can pass a drug test could be putting some employers in a real bind. Although Oregon’s economists are writing from anecdotal evidence, this is a phenomenon we’ve seen in other parts of the country as well, with many employers rethinking their drug-free workplace policies in light of the labor crunch.
Some organizations simply don’t think drug testing employees outside safety-sensitive roles is worth the cost anymore, especially for relatively benign marijuana use. Even Labor Secretary Alexander Acosta has hinted that it might be appropriate for some employers to stop automatically disqualifying candidates for failing a marijuana test. Cannabis remains highly illegal under federal law, classified as a Schedule I narcotic, and this national policy seems unlikely to change in the near future. The drug has been legalized for medical use in 30 states and for recreational use in eight of those states, plus Washington, DC. This means employers throughout the country are facing a growing population of current and potential employees who now have a legal right at the state level to use marijuana.
While organizations may be on safe ground to maintain drug-free workplace policies given the continuing federal prohibition, issues are arising in the courts and legislatures of legal states about whether they can police their employees’ marijuana use outside the workplace. Maine is so far the only state to enshrine employment discrimination protections for marijuana users into law and even that provision leaves some questions unanswered. Business groups have been pressing the federal government to provide some guidelines on how employers should handle the conflict between federal and state laws regarding cannabis.
If Oregon employers are having a hard time finding “clean” employees, the problem may simply be that they are continuing to test for and prohibit a drug that many Oregonians have embraced their right to use under state law just like alcohol or tobacco. Employers in this situation have only a few options for how to handle that, Steve Boese comments: Do nothing (maintain your existing zero-tolerance drug policy), segment pre-employment screening protocols more specifically by role, or give into reality and get used to the fact that some of your employees are smoking pot off the clock:
Sure, make or continue to enforce ‘on the job’ rules of conduct as you see fit, no one is arguing that, but let go of this kind of old-fashioned idea of having a ‘drug-free’ workforce. Because you know what? You don’t have one of those anyway, despite whatever rules or policies you have. Said differently – a drug-free ‘workplace’ is your right (and the right thing to have), and drug-free ‘workforce’ is more or less none of your business and is out of your control.
Much depends, of course, on whether marijuana is the only drug influencing the Oregon labor market. If employers there are also running into large numbers of candidates who are dependent on opioid painkillers, that poses a completely different set of challenges.