A new federal labor report indicates that drug testing rates at U.S. workplaces have fallen considerably over the past quarter-century, as states began ending marijuana prohibition—and the data offers a glance what types of industries are screening workers for drugs the most and the least.

The U.S. Bureau of Labor Statistics (BLS) released the report last month. It also found that a small proportion of workplaces have eliminated or delayed screening of workers for drugs including alcohol during the COVID-19 pandemic.

The report is part of a project measuring businesses’ response to the pandemic. It appears to be the first time since 1996 that the workforce fact-finding agency has asked employers about drug screening.

During that time, nearly three-quarters of all U.S. states have since legalized medical marijuana, while more than a third have OK’d cannabis for adult use. The report shows that drug testing is generally less prevalent in states that have opted to legalize.

As might be expected, workers in safety sensitive industries like transportation and warehousing were most likely to be tested compared to other sectors like those in food services, arts and educational services.

In 1996, about 30 percent of all surveyed worksites said they tested for drugs, while about 14 percent said they screened for alcohol. In the new survey, 16.1 percent said they tested for drugs and/or alcohol.

The survey went out to roughly 317,000 establishments across the country and received usable responses (with answers to at least 5 of 25 questions) from more than 80,000 workplaces across the country. Unlike most other BLS surveys, employers were asked to answer questions online and without the presence of an interviewer.

Two of the survey questions asked about testing for drugs including alcohol. One asked whether the worksite was currently testing new applicants or current employees for drugs, and the other asked whether the workplace reduced or delayed testing since the beginning of the pandemic.

Michael Dalton, a BLS research economist who worked on the survey, told Marijuana Moment that he pushed to add the drug-screening questions to the employer after seeing media reports that some companies had stopped testing employees and job applicants in order to make it easier to fill open positions.

“There seemed to be a few stories, and these were, as far as I’ve read, entirely anecdotal,” Dalton said. “Part of where where it hit a brick wall was that we didn’t have recent data about drug testing.”

While the BLS report found evidence of a decrease in screenings generally, that reduction was slight—only 2 percent of workplaces said they’d eliminated or delayed testing, while 7.9 percent said that they eliminated or delayed testing and also tested new applicants or current employees.

The findings nevertheless shed light on practices by private employers around the country, analyzed by size of the facility, industry sector and state.

The report defines establishments not as business entities but as individual physical locations, meaning that for the purposes of the survey, a business with one office in two different states would represent two separate establishments, each of which would need to return a questionnaire.

Dalton said he hopes future reports will allow analysis by total company size. “We also have estimates that are not publicly available just yet where we look at average wage paid within the establishment,” the researcher said.

One of the more robust associations the survey found was that establishments in states with legal cannabis tended to be less likely to screen workers. Eight out 10 states with the lowest percentage of establishments drug testing have legalized marijuana for adult use. Among the 10 states with the highest screening rates, meanwhile, not one has legalized cannabis.

(2) One interesting cut is just looking at the 10 states with fewest and most establishments drug testing. 8 out of 10 states with lowest rates have marijuana fully legalized – none of the states at the higher end fall into this category pic.twitter.com/epkAfy3bYa

— Mike Dalton (@WhereTheJobsAt) February 9, 2022

Any causal relationship, of course, is unclear from the available data. It’s possible that more employers decided against screening workers as a result of legalization, but it’s also possible that underlying local attitudes—toward personal freedom, privacy or off-duty drug use, for instance—helped to drive both legalization and relatively lower testing rates.

Vast differences were also seen across industry sectors, in part due to ongoing federal cannabis prohibition. The transportation and warehousing sector and utilities sector both had testing rates far higher than the rest. Transportation and warehousing, which includes the federally regulated trucking industry and others, was the only category of businesses in which more than half of establishments said they screened for drugs.

Among the sectors with the lowest rates of testing were accommodation and food services; arts, entertainment and recreation; information; educational services and financial activities.

graph of sectors here pic.twitter.com/9YQGbMgd5a

— Mike Dalton (@WhereTheJobsAt) February 16, 2022

More employers in the utilities sector reduced drug testing during the pandemic than in any other sector, but that doesn’t mean they stopped screening entirely. The sector also had the highest proportion of establishments that both reduced or delayed testing and also tested new applicants or current employees

In terms of size, smaller facilities were far less likely to require screenings. Among establishments with fewer than 20 workers, 12.9 percent tested workers or employees. Of workplaces with between 20 and 100 people, 34.7 percent did. Those numbers continued to climb at sites with between 100 and 500 people and (56.7 percent) and those with more 500 people (69.9 percent).

Prior to 1996, Dalton said, the last BLS question about drug screening that he could find was from 1988.

Dalton said it was too early to tell whether any decreases in drug screening that occurred during the pandemic would persist afterward. He acknowledged that while many COVID-related workplace changes could fade, others aren’t likely to be reversed entirely.

When BLS asked about remote work during the pandemic, for example, “about 20 percent of all establishments said they increased telework and expect those increases to continue later,” Dalton said.

Congressional Democrats Elevate Marijuana Equity Issues At Retreat Panel Focused On Legalization

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“The industry is growing, but our involvement is not.”

By Rebecca Rivas, Missouri Independent

Abe Givins sunk into a leather armchair at the Cola Private Lounge in St. Louis on Saturday afternoon, where his company hosted a panel of doctors speaking about medical marijuana.

Givins is co-owner of Village, which advertises itself as the only vertically-integrated medical marijuana company in Missouri that’s 100 percent minority owned—meaning they have licenses to grow, manufacture and sell marijuana products. 

A key part of the company’s mission, Givins said, is fighting for social equity in the cannabis industry, particularly in light of how the war on drugs has ravaged minority communities.

“A lot of people that I know have been incarcerated for cannabis offenses that were non violent,” said Givins, whose company is part of the Viola Brands franchise, one of largest Black-owned cannabis companies in the country. “So why not fight to get into the space and make it better for the people that are incarcerated?”

More than 2,000 applications were submitted for medical marijuana licenses in 2019, but fewer than 400 were ultimately awarded. And while the state doesn’t track the race of those who got a license, Givins and others in the burgeoning industry say few went to Black-owned businesses. 

With the state potentially on the verge of another vote this fall on whether to legalize recreational marijuana, many in the Black community fear being shut out yet again.

“The industry is growing, but our involvement is not,” said Brennan England, state director of Minorities for Medical Marijuana, an advocacy organization for cannabis legalization. 

At the heart of the Black community’s concern are the license caps implemented by state regulators.

The state decided early on to only issue the minimum licenses allowed under Missouri’s constitution: 192 dispensary, 86 manufacturing and 60 cultivation. The number of licenses issued since setting those caps is slightly higher for each category. 

The recreational marijuana proposal with the best chance of ending up before voters this fall, called Legal Missouri 2022, would allow the state to continue capping licenses while giving current medical marijuana license holders dibs on recreational licenses—a move critics argue would only reinforce the inequity built into the current system.

“[Legal Missouri] creates monopolies,” said Democratic state Rep. Ashley Bland-Manlove, president of the Missouri Legislative Black Caucus. “People who have the desire and the skill set and maybe the bare minimum qualifying capital are boxed out.”

Legal Missouri supporters say the system’s racial inequities would be addressed through the 144 “micro licenses,” where applicants must be a resident from a ZIP code with high marijuana incarceration rates or meet other such requirements. 

Currently, one of the biggest struggles for many smaller medical marijuana companies is obtaining capital. Marijuana is still illegal on a federal level, so bank loans are not an option. 

And it’s often more difficult to build that capital for Black business owners in general, said Adolphus Pruitt, president of the NAACP chapter in St. Louis city.

“Those micro licenses are what’s going to be Black folks’ entry into the marketplace, because they don’t have the capital,” said Pruitt, who supports Legal Missouri.

And the license cap is also an important piece of the equation, said John Payne, campaign manager for Legal Missouri.

“If you want to have equity for the people that win the micro licenses, then you do want to have some level of limits there,” Payne said.

But to critics, the Legal Missouri plan only offers minority businesses a small piece of the pie.

“Micro business licenses are limited to one per applicant,” unlike regular licenses, said Christina Thompson with ShowMe Canna-Freedom, a group advocating for marijuana policy reform in Missouri. “This blatant inequality is not what Missouri stands for, and it sets a terrifying precedent for our Constitution.”

Inequities in the application process

After Missouri voters signed off on medical marijuana in 2018, it was up to the Department of Health and Senior Services (DHSS) to build the entire program from the ground up.

They set about doing that under strict constitutional deadlines over the next year.

As DHSS began setting up the program’s rules, as well as building the bidding process for licenses, state lawmakers, the Missouri Legislative Black Caucus, business leaders and the Missouri Medical Cannabis Trade Association urged regulators to ensure there was racial diversity in the medical marijuana marketplace.

Democratic state Sens. Steve Roberts and Karla May of St. Louis say they spoke directly with DHSS leadership in early 2019 asking for the application process to include the Minority Business Enterprise (MBE) program, which would give a set amount of bonus points in a competitive bidding process to businesses that are at least 51 percent owned and controlled by one or more minority persons. 

The trade association also encouraged DHSS to focus on diversity in ownership as well.

“For most large State of Missouri contracts, everything from IT services to road construction, some consideration, including points, are awarded for MBE/WBE participation,” according to an April 23, 2019 letter from Andrew Mullins, executive director of MoCannTrade, to the medical marijuana advisory committee. “Medical marijuana licensing should not be excluded from these same considerations.”

But in the end, instead of utilizing the MBE program, the state included a question in the application that asked businesses to provide a diversity plan, which included diversity in staffing and ownership. 

It was a half measure, Roberts said.

“They had no interest in supporting minority businesses or helping them get these licenses,” Roberts said. “And there were plenty of viable businesses that applied and could have been very successful in our state.”

A DHSS spokeswoman said the state’s marijuana law, “limited the factors DHSS could consider in reviewing medical marijuana applications. DHSS considered the input of all stakeholders, including the Missouri Legislative Black Caucus, and incorporated that input where the law allowed.”

Regarding tracking minority ownership, she said the medical marijuana program does not require personal information of any kind from licensees or patients that is not directly related to a Department responsibility.

Roberts and others said the diversity questions were “too subjective,” and many applicants allege that the scores were inconsistent. 

In what’s become a familiar refrain since state awarded licenses in January 2020, jilted companies complained that they received different scores for identical answers—in many cases lowering their overall points enough to cost them a license. 

That includes scores on the diversity portion of the application for minority-owned businesses. 

In August 2019, Jaws Ventures Inc., previously a minority-owned business, applied for seven licenses – one for cultivation, one for manufacturing and five for dispensaries. DHSS denied all seven.  The group appealed, arguing that the scoring inconsistencies on the diversity questions contributed to them losing out. 

In one of the group’s dispensary applications, the company missed a license by only 0.1 points. 

On the question, “How will the business train employees on diversity and cultural awareness?” they received a “7.” But on another of their applications with the same answer, they received a “10,”  which would have added 1.2 points and put them above the cutoff line for scores.

The company argued that DHSS’s own scoring guide states that where applicants provided identical responses to a question on multiple applications, “the score must be the same.”

A representative of Jaws Ventures Inc. declined comment on their appeals because some were still ongoing. However, according to DHSS’ lists of license owners, the group was eventually awarded one dispensary license and one manufacturing license.

The state has been ordered on at least three occasions by the administrative hearing commission to issue licenses to companies it had previously denied based on issues with inconsistent scoring. 

Givins believes minorities who missed out on Missouri’s medical marijuana licenses, or were delayed in receiving them, could still get in the game. 

Recreational marijuana will likely be more sustainable because there’s more potential revenue than the medical market, said Givins, who started the company with his cousin former NBA player Larry Hughes.

“Whether you get a patient in there or not, you still have bills to pay,” Givins said. “So once recreational comes, of course, you will have way more customer flow, because a lot of people don’t like dealing with the medical card aspect.”

‘Cannabis Freedom Act’

On Tuesday, a Missouri House committee heard testimony on a proposal sponsored by Republican Rep. Ron Hicks of Defiance that would legalize recreational marijuana in Missouri without capping business licenses. 

Dozens of people who testified in favor of Hicks’ “Cannabis Freedom Act” alleged that Legal Missouri would create a monopoly, causing further inflated marijuana market prices.

Under the Legal Missouri proposal, for the first 18 months the state would only award “comprehensive licenses” to sell, manufacture and cultivate recreational marijuana to the entities that currently have the medical marijuana business licenses.

Hicks said that path could have a particularly harmful impact on minority business owners. 

“How many licenses is that that we give away, right off the bat?” Hicks told the House Public Safety Committee Tuesday morning. “And if we put a cap on it, then what’s left? How do the minority individuals in this state open their business in this industry?”

Hicks’ bill currently has 20 co-sponsors, including Republican Rep. Shamed Dogan, who filed similar legislation and Bland-Manlove. It includes a provision for the expungement of nonviolent marijuana offenses from criminal records, through a court petition process. 

John Pennington, founder and CEO of St. Louis-based Proper Cannabis, testified against Hicks’ bill Tuesday. He’s invested $23 million in his medical marijuana business, and he said he’s seeing a substantial surplus in production, like other Missouri growers. 

“So open this up to an unlimited licensed state, the black market will expand,” said Pennington, who also a partner and owner of the commercial real estate company Savoy Properties. “Standards will be reduced. More people will be using cannabis and will get in the wrong hands.” 

Like several others who testified in opposition, Pennington pointed to Oklahoma where law enforcement officials say the low barriers for entry and the loose regulatory environment has led to a huge increase in the number of illegal operators – who sell across state lines. 

An attorney with MoCANN echoed these same issues and the need for license caps. But Rep. Shane Roden, a Cedar Hill Republican and the committee’s chairman, pushed back.

“So what I got from that was—the state of Missouri is actually a monopoly,” Roden said. “We’re the ones collecting a $50,000 licensing fee with a non refundable, so I’d say that hampers some individuals from being able to legally start their business, especially if they can’t get a loan.”

The Independent’s Jason Hancock contributed to this story.

This story was first published by Missouri Independent.

New York To Let People With Marijuana Convictions Open Dispensaries Before Big Businesses Can Enter Market

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New York regulators are set to approve a rule making it so people with prior marijuana convictions, or whose family members have been harmed by criminalization, will get the first round of adult-use marijuana retailer licenses—ahead of existing medical cannabis businesses.

The proposal to create the conditional licenses will be taken up by the New York State Cannabis Control Board (CCB) on Thursday. It’s a move that would set the state apart from others that have enacted legalization but faced criticism over a lack of promised equity results.

Gov. Kathy Hochul (D) is expected to announce the plan on Thursday, as first reported by The New York Times. Office of Cannabis Management (OCM) Executive Director Chris Alexander told the newspaper that he expects upwards of 200 “justice involved” applicants to receive the priority licenses under the proposal, with retailers potentially coming online by the year’s end.

To qualify for the conditional license, an applicant would need to have been convicted of a cannabis-related offense prior to March 31, 2021, when the state’s adult-use legalization law was enacted. Those who have a “parent, legal guardian, child, spouse, or dependent” who faced such convictions would also be eligible, as would those who were themselves dependent on someone with a conviction.

There are some business-related requirements in order for eligible applicants. For example, the measure states that they must “hold or have held, for a minimum of two years, at least ten percent ownership interest in, and control of, a qualifying business, which means a business that had net profit for at least two of the years the business was in operation.”

Non-profit organizations could also be eligible to hold the licenses if they “intentionally serve justice involved individuals and communities with historically high rates of arrest, conviction, incarceration or other indicators of law enforcement activity for marihuana-related offenses.”

Existing medical marijuana operators, called “registered organizations” under the state’s cannabis code, would generally not be able to obtain the proposed conditional licenses. This seems to be part of the state’s overall goal of ensuring that the industry that emerges is equitable and not dominated by monied multi-state operators.

“I could press the green button right now and have 40 dispensaries online,” Alexander said, referencing the existing medical marijuana retailers operating in the state. “But instead we’ve decided that the folks who have been most impacted actually have the space and the real runway to participate in a meaningful way.”

To further ensure that those most impacted by criminalization are able to compete as the market opens and matures, the conditional licenses would need to be reserved to applicants with at least 51 percent ownership by justice involved people as outlined in the measure.

Kassandra Frederique, executive director of the Drug Policy Alliance, told Marijuana Moment that the New York model represents much-needed “innovation” in drug policy reform.

“It is encouraging for to see that the New York regulators are attempting something different,” she said. “Often times, advocates say they are centering people who are most directly impacted yet build plans and policies first and then try to incorporate people. Here you see New York regulators attempt at trying to build implementation around the people that should benefit the most. It is not guaranteed to work, but it is definitely progress.”

Conditional adult-use retail licenses would be valid for four years. Licensees would need to notify regulators of their intent to continue participating in the recreational market within 120 calendar days of the expiration of the conditional license. Regulators would conduct a review before approving them for the standard adult-use retailer licenses that will eventually be made more widely available to any interest parties.

Meanwhile, the state has also taken separate steps to get the industry in a position to have products available by creating provisional marijuana cultivator and processor licenses for existing hemp businesses that take certain steps to promote equity in the emerging industry. Hochul signed that legislation late last month, and applications for those businesses will open next week.

As it stands, adults 21 and older can possess and publicly consume cannabis, as well as gift marijuana to other adults as long as they aren’t being compensated. But regulators are still finalizing licensing rules, and there are currently no retailers that are authorized to sell cannabis for adult use in the state.

Hochul has repeatedly emphasized her interest in efficiently implementing the legalization law.

The governor released a State of the State book in January that called for the creation of a $200 million public-private fund to specifically help promote social equity in the state’s burgeoning marijuana market.

Hochul said that while cannabis business licenses have yet to be approved since legalization was signed into law last year, the market stands to generate billions of dollars, and it’s important to “create opportunities for all New Yorkers, particularly those from historically marginalized communities.”

That proposal was also cited in the governor’s executive budget, which was released in January. The budget also estimated that New York stands to generate more than $1.25 billion in marijuana tax revenue over the next six years.

Assembly Majority Leader Crystal Peoples-Stokes, who championed the state’s adult-use legalization bill that was enacted last year, told the Times that “we’re trying to do what no other state has done, and that’s focus on their people,” adding that this is “critical because it’s a huge industry that’s going to grow our economy a lot, and I think it makes sense to let that growth begin with New Yorkers.”

Enacting legislation that expedites licensing could help the state reduce the number of businesses that are effectively using the legal “gifting” provision of the state’s marijuana law to give away cannabis for “free” if a non-marijuana-related purchase is made.

New York regulators recently issued warnings to more than two dozen businesses that they allege are either illegally selling marijuana without a license or exploiting the “gifting” component.

Here are some other ways that New York lawmakers and regulators are working to build upon the legalization law as the state prepares to implement retail sales: 

Last month, for example, a state senator filed a bill that would promote recycling in the marijuana industry once retail sales officially launch.

Sen. Michelle Hinchey (D) is also sponsoring that legislation, which would require cannabis shops to apply a $1 deposit for any marijuana products sold in single-use plastic containers and also reimburse consumers for that fee if they return the container.

The senator is also behind a separate bill filed last year that would prioritize hemp-based packaging over synthetic plastics for marijuana products.

The recycling bill is identical to an Assembly version filed by Assemblywoman Patricia Fahy (D) last year.

Sen. Jeremey Cooney (D) is sponsoring a recently introduced bill to allow licensed cannabis companies to deduct certain business expenses on their state tax returns. He’s also behind the aforementioned measures to expand the marijuana law’s equity definition and provide provisional licenses to get the market ready.

The state Department of Labor separately announced in recent guidance that New York employers are no longer allowed to drug test most workers for marijuana.

Meanwhile, a New York lawmaker introduced a bill in June that would require the state to establish an institute to research the therapeutic potential of psychedelics.

Another state legislator filed legislation in December to legalize psilocybin mushrooms for medical purposes and establish facilities where the psychedelic could be grown and administered to patients.

Meanwhile, as New York prepares the launch of its adult-use marijuana market, OCM announced this month a significant expansion of the existing medical cannabis program.

Now doctors will be able to issue medical marijuana recommendations to people for any condition that they feel could be treated by cannabis, rather than rely on a list of specific eligible maladies.

Hawaii Senate Unanimously Approves Psilocybin Task Force Bill, With Decriminalization Measures Still Pending

Photo courtesy of Brian Shamblen.

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