Testing Our Patience: Cannabis Testing In The Era of Legalization

By Danny Hulkower

The witching hour begins around 7:30am, and for the next 15 minutes, the anxiety will flow. By now the process is second nature, and yet he still can’t help to feel nervous. He has his kit, he’s used it before, he’s practiced a thousand times. 7:35. Deep breath, don’t pace around! 7:39 to 7:40. An urgent text message comes through: “they’re here, you’re up. Are you good?”

For many stoners this scenario is a head scratcher, for others it’s a daily concern. In this, the 21st century, hundreds of thousands of Americans are forced to urinate in a plastic cup, so some clinician rummage through it, to prove to their employer that they’re not using the devils lettuce. Under the guise of “work place safety”, this relic of Reagan era reefer madness still chugs along, forcing responsible tokers, both recreational and medical, to always live one job interview away from being forced to give up Marijuana.

Since the genesis of the industrial revolution there have been bosses who took an interest controlling the lives of their employees. Some unscrupulous company owners even paid their employees in scrip instead of legal currency, forcing them into economic bondage. Imagine being unable to leave your miserable coal mining job, because the only currency you possess is useless outside the company store?

Henry Ford took “micro-management” to new and excitingly intrusive levels. When Henry Ford introduced a five dollar a day wage, it was hailed as new age for the industrial worker. Henry Ford is responsible for giving the employee a sense of pride, and making him feel that the dangerous, monotonous factory work he performed was appreciated.

Although this policy helped reverse Ford’s epic employee turnover rate, nothing is ever free. The five dollar salary came with a set of moral demands. With an influx of immigrants looking for work to feed their families, many complied. Having your life combed through seemed like a small price to pay for the 2020 equivalent of $129 a day!

Ford’s Human Resources department, operated quite differently than what you might be used to. Want to own a Ford vehicle? Make sure you meet Henry Ford’s requirements. Trouble with money? Family? Sobriety? Not coming along on your English lessons? Gamble a bit? Not married? If so, you could find yourself on the losing end of Ford’s generosity. An army of investigators scrutinized your life to determine your fate in the company, and for immigrants and natives alike, your American dream.

Those who stuck with Fords program absolutely benefited, but the question arose as to whether or not a boss had the right to concern himself with the lives of his employees. Should the managerial surveillance continue to operate after 5pm? Should an employees home life and personal life choices matter to supervisors? Eventually Ford realized the price of corporate nannying wasn’t worth it. but by then a certain standard had been set.

The industrial revolution steamed forward, and after two world wars, America emerged an unquestioned leader of production. Factories across American churned out some of the best quality, and most advanced products of the time. Cities boomed, unionized Workers bought cars and homes, then sent their children to universities. The American worker was rewarded with benefits and retirement. It’s interesting to point out, that despite many companies having policies against showing up to work intoxicated, it was only in the late 70’s into the 80’s that federal government began addressing the issue... at the same time deregulation would eventually close many of the factories, and send many of the American jobs abroad, as well as forcing most American jobs into the service sector.

On a frigid afternoon in January 1987, a train derailment in Chase Maryland, would spark the wick for drug testing to go from company policy, to federal regulation. A Conrail Engineer and his brakeman, started their journey from the Conrail yard in Baltimore, to another in Harrisburg, PA, by failing to perform their required pre-trip safety procedures, and smoking a joint. Gunning passed multiple signals admonishing the Conrail train to slow down, the brake wouldn’t be pulled until it was too late. An Amtrak train barreling down the track slammed into the Conrail diesel, leading to, until that point, the worst accident in Amtrak history (it would be surpassed by the 1993 Bayou Bridge disaster in Alabama).

16 people died, including the motorman of the Amtrak train, and 170 were left injured. In the aftermath, the media jumped straight to the fact the two most important people on that Contrail train were toking, and as the media does, they tuned the narrative, blaming Marijuana. A year later Reagan passed the Drug Free Work Place Act, which started the process for giving employers, both private and government sectors, the right to test their employees urine. In 1991 the Omnibus Transportation Act was passed, which solidified into law that all DOT license holders had to submit to random testing. By the end of the 90’s many private and public agencies were in compliance. Since then marijuana testing as trickled down to welfare recipients, high school students, and gun owners (in some places being a medical marijuana patient keeps you from obtaining gun permits... but you can still get drunk).

Was Marijuana the most crucial factor in that fatal wintertime derailment? What do you think: First and foremost the pre-trip safety checks were skipped. Those would have uncovered a light bulb in the cab signals (that alerts the motorman to track conditions) had been removed, duct tape plastered over the speaker for the shrill failure to stop warning alarm. The brakeman too failed in his duty to call out missed signals to his motorman. Americans need a quick and easy blame. And when the choices are between list of safety violations written in complicated railroad lingo, or pot, you can see why the latter made sense. It didn’t help that Reagan’s war on drug was raging, so having an excuse to demand all employees be sober from weed 24/7 makes perfect sense to everyone... Except statistics.

In the late 90’s the ACLU published: Drug Testing, a Bad Investment. Going into great detail, they laid out what, if any, positives drug testing produced. None. It makes no difference. Shit happens. I reiterate: if you operate heavy machinery or ferry passengers in large vehicles, you need to be sober. However, there is no connection between the joint you smoked when you got home the day before, and the accident you had the day after. Even as states begin legalizing, anti-pot crusaders point out that higher number of traffic accident victims are testing positive for THC. However, the correlation still does not imply causation. Finding THC metabolites in a accident victims or perpetrators blood or urine, is no indicator of their sobriety at the time of the collision. I can smoke all day Friday, get into an accident Monday, and although scientifically the two are not related, the law says they are. Even if the accident was totally not my fault, I’ll be disciplined for testing positive.

NYC and Maine recently called for businesses to stop testing employees for weed. Although it seems like a great stride, it’s really just a small hop. As long as the federal government obstinately refuses to rescind or at least amend, the Omnibus Act and the Drug Free work place act, there will still remain a large contingent of the population who will always be forced to quit to take a job. So what does this mean for the legal states? Courts in Colorado unanimously upheld the decision of a company to fire a quadriplegic customer service representative, for off duty medical marijuana use. Despite the state law saying weed is legal, the Drug Free Workplace that cancels it out.

Drug testing has its place, but the current standard for marijuana is just plain ridiculous. I should be allowed to smoke pot on my couch, as legally as I can drink a beer; whether I drive a tractor trailer, or work in a call center. I believe it is up to the weed business owners to act upon this issue and force the federal government to budge. Any ganja capitalist will realize that with 88% of employers drug testing their staff at some point during the career, there is a pretty solid group of people who will pass on the joint. Even with fake pee kits available, for most people it’s not worth the trouble. To add insult to injury: 86% of employers worry legalized weed will increase operating costs. This based on the fear that off duty marijuana use contributes to work place accidents and slowdowns. I wonder if we will see businesses in legal/legalizing states implement weed testing “just to be on the safe side”, or as an excuse to discriminate against hiring pot smokers?

Humanity’s greatest architectural, intellectual and industrial accomplishments took place well before Reagan’s Drug Free Workplace act, and the 1991 Omnibus Act. But if you speak to drug testing advocates now, you’d wonder how humanity functioned until then. Sure workplaces are safer, but that’s more due to OSHA standards than pee tests. It’s been shown that off-duty marijuana use does not have an impact on the safety, reliability, efficiency and productivity of a worker and his workplace, so why does it remain? Reefer madness, and of course the industry that has since been built around little plastic cups with temp strips, complete with their own lobbyists.

I’m not sure what mission the legalization movement is on at the moment. With great weed being available everywhere, cops refusing to respond to smell complaints, ticketing for outdoor smoking, coffeeshops and dispensaries existing on American soil, everyone seems to be pretty content with where we’re at. But I know plenty of people who aren’t. With talks of marijuana being part of the post- Covid economy, it makes perfect sense to get the campaign rolling now and ensure that every American will get to freely partake... after work that is!