As a social conservative, alcohol has always been my drug of choice. For me, the odor of marijuana on a city street evokes a discomfiting sense of lawlessness and societal decline. But I remind myself that Carrie Nation, who attacked alcohol-service establishments with a hatchet in the lead-up to prohibition, had the same feelings toward the bourbon I so relish. And so it’s time to bury my own hatchet when it comes to cannabis.
Irrespective of one’s thoughts on marijuana legalization, we have reached a point of no return both in terms of culture and economics. More than 50 percent of Americans live in jurisdictions where recreational marijuana is legal, and 74 percent have access to medical cannabis. Revenue of the U.S. cannabis market will exceed $30 billion in 2023 and will increase at double-digit rates for the foreseeable future. State treasuries hunger for the tax revenue.
Given its legality, given its ubiquity, it is time we stop gratuitously destroying careers based on marijuana tests that say nothing about impairment. The problem is particularly acute in the transportation industry, where employers are compelled by federal law to randomly test employees and remove them from their safety sensitive positions based on positive tests. Frequently, that removal is followed by termination by the employer and license action by the regulating agency.
Driven by my sympathy for the affected individuals, I have handled numerous cases for employees who have lost their jobs due to positive tests. Moreover, most of the cases I have handled have resulted in reinstatement—sometimes due to specimen collection errors, occasionally due to deficient medical review and once due to a laboratory’s failure to properly validate its testing methodology. However, our nation’s marijuana dilemma calls for a broader approach: a change in policy.
It is undisputed that the mandated testing methodologies do not reflect time-specific impairment; however, that limitation has always been met with a collective shrug by regulators. After all, the “prohibited drugs” for which the federal government requires testing are all illegal; therefore, it is considered sufficient that the test confirms that, at some time in the recent past, the employee used the drug.
By contrast, a “positive” test for the legal drug of alcohol has always required proof of current intoxication.
The obvious solution would be to apply the alcohol current intoxication approach to cannabis. The problem is that, currently, there is no reliable test for current marijuana impairment. In response to this dilemma, we have seen a sub rosa movement by certain decision makers and regulators cutting some slack for employees who test positive for marijuana.
Hellbound and Down 