Written by Lawrence H. Pockers, Shannon Hampton Sutherland, Bryan N. Shapiro and Sean P. McConnell and Christopher J. Carney from Duane Morris LLP on August 8, 2024
According to Quest Diagnostics, one of the nation’s leading drug-testing laboratories, positive marijuana tests among the U.S. workforce increased to 4.5% in 2023. The percentage of positive tests was 4.3% in 2022 and 3.1% in 2019. In 2023, Quest conducted about 8.4 million urine drug tests for employers, plus 1.3 million oral fluid tests and 73,000 hair tests. Meanwhile, the overall percentage of workers testing positive for any illegal drugs has held steady at 4.6% for the past three years, significantly down from 13.6% in 1988, when workplace drug-testing programs started.
Quest also found an increase in workers cheating on drug tests, which often occurs when workers replace their urine with someone else’s urine or synthetic samples bought online. Another common drug-testing cheating method is when workers submit invalid specimens, which suggests that they have been mixed with an additive. Quest stated that out of 5.5 million urine samples collected from workers last year, about 6,000 were classified as substituted, and 25,000 were classified as invalid. The number of invalid tests increased by 45% from the prior rate, reaching an all-time high.
The increase in positive marijuana tests is not surprising, given that society is becoming more accepting of its use, and many states have legalized it, either medically, recreationally, or both. As more people use marijuana, test results inevitably will rise. Predictably, those states that have legalized recreational marijuana have seen the greatest increases in positive marijuana tests for workers.
Currently, two dozen states and Washington, D.C., allow recreational marijuana use. Still, marijuana remains classified under federal law as a Schedule I drug, although the Biden administration is seeking to downgrade it to a less serious Schedule III drug.
Quest’s statistics also showed a significant increase in 2023 positive marijuana tests among white-collar workers in 13 of 15 industries. Positive tests in finance and insurance increased by over 35%, while tests in public administration rose almost 24% and real estate by 22%. While it is unclear what has caused the spike in marijuana usage among white-collar workers, it may be the product of unprecedented stress and isolation during the pandemic and work-from-home policies that have continued after the pandemic.
In response, some employers are rethinking their drug-testing policies to take differing state laws into account, and some are moving away from testing for marijuana altogether. Still, other employers are drug-testing workers only if they suspect impairment at work or during random and pre-employment tests.
Reclassifying marijuana as a Schedule III drug still would leave a conflict between federal law and many state laws. A Schedule III classification could mean that marijuana would be available with a prescription under federal law.
