Despite the recent legalization of recreational marijuana use and a tight labor market, Southeast Michigan employers remain sober in their stance on drug testing.

Employers have reached deep into the talent attraction quiver to find employees in a labor market where there are more job openings than job seekers, including higher wages, better benefits, and more, but relaxing drug screening policies isn't on the table for most.

Many companies, such as utilities DTE Energy Co. and Consumers Energy Co., are under the directive of federal rules — marijuana is still considered a Schedule I narcotic under federal law and federal contractors are required to do drug screening for all narcotics — or safety liability has them reticent to remove screening. Others just aren't ready to openly welcome drug users into their ranks. As a result, workers or potential workers in Michigan are failing employment drug screening for marijuana at an increasing rate. Some industries, such as retail and restaurants, have ditched drug testing to maintain a workforce, but most have kept policies in place post-legalization.

Employer-required drug test failures for marijuana use have increased from 1.9 percent of all drug tests in 2008, when Michigan voters approved a measure to legalize medical marijuana use, to 3.3 percent of all drug tests in 2018 when a similar bill to legalize recreational adult-use marijuana was passed, according to the latest data by the largest U.S. drug testing lab Quest Diagnostics Inc. Employment experts told Crain's that most businesses are unlikely to bend on drug testing rules unless the drug is legalized at the federal level, something they believe will happen within five years, and as marijuana becomes more mainstream like alcohol.

Livonia-based metal stamper and engineering firm AlphaUSA has not and has no plans to adjust its pre-employment drug screening policies because "... our position on drugs in the workplace hasn't changed" and is as much a cultural issue as it is a safety issue, said David Lawrence, chief administration officer.

The company also performs a multipanel drug screening for reasonable suspicion and post-leave of absence, Lawrence said. A job candidate would not get hired if they failed a drug test and an employee would be terminated.

Drug test failures for marijuana use have also risen nationally, but failures are more pronounced in the states that have legalized recreational use of the drug. Oregon and Colorado, both of which passed recreational adult use in 2014, have seen drug test failures rise from 1.8 percent in 2008 to 4.3 percent last year and 1.6 percent in 2008 to 3 percent in 2018, respectively, according to the Quest Diagnostics Drug Testing Index.

Drug tests for marijuana typically include a urine test, which can indicate whether the main chemical in marijuana, tetrahydrocannabinol or THC, has been ingested in the past 30 to 45 days.

Darcey McAllister, principal consultant for human resources advisory firm HRT Northwest in Portland, Ore., said companies in Oregon and Washington state also haven't changed drug testing policies, but have changed how seriously they take failures.

"From an HR perspective, nothing changes," McAllister said. "If you were testing before, you are testing now. But as time went on, no one talked about it anymore. When it's new, it's a big shiny topic, then it fades away. Companies made sure to communicate that just because it was legal, it wasn't acceptable on the job. But if you can pass the test, the employers here don't seem to care if you're using. Just don't talk about it. It's more in line with alcohol. I expect the same for companies in Michigan in the future."

While Troy-based Delphi Technologies PLC maintains its drug screening policy of testing pre-employment, a positive test isn't necessarily damning, Kristen Kinsley, director of global digital media and integrated content, told Crain's. If a candidate fails a drug test, it's taken into consideration in the hiring process at the auto supplier, Kinsley said.

Regardless, workforce drug positivity — which includes testing for marijuana, opioids, heroin, amphetamines and PCP — hit a 14-year high nationally in 2018, according to the Quest index.

"Our in-depth analysis shows that marijuana is not only present in our workforce, but use continues to increase," Barry Sample, senior director of science and technology at Quest Diagnostics, said in a news release. "As marijuana policy changes, and employers consider strategies to protect their employees, customers and general public, employers should weigh the risks that drug use, including marijuana, poses to their business."

For Detroit-based DTE Energy, the safety of its workers who deal in high-voltage electricity and explosive natural gas, a policy change on marijuana is dangerous. The company doubled down on its communication to employees last year that legality doesn't equate to company acceptance, said Diane Antishin, vice president of human resources.

DTE is also a federal contractor, so it remains dictated by federal rules that require employees receive drug testing for work related to the government.

Jackson-based CMS Energy also tests employees for drug use, including marijuana.

"The safety of our employees and communities is top priority for Consumers Energy given the extremely hazardous nature of working with electricity and natural gas in our daily operations," the company told employees following legalization. "As stated in our code of conduct, we strictly prohibit the use of unauthorized drugs by all employees, including marijuana and are committed to keeping the workplace free from the effects of substance abuse."

The company's response to a positive test is evaluated on a case by case basis and could range from treatment to termination, a CMS spokesperson said; their internal process did not change with marijuana legalization.

Drug test failure rates for marijuana among federally mandated, safety-sensitive workers continues to rise nationally, though at a much slower pace than the general workforce population, according to the Quest index. Marijuana positivity rates for employment drug tests increased to 0.88 percent in 2018 from 0.71 percent in 2014. That's a nearly 24 percent increase in raw numbers of failures, according to Quest.

As drug test failures have risen among that workforce, so has the number of tests proven invalid by people attempting to cheat the test through various means — common cheats are diluting the urine by drinking a higher-than-normal amount of water, substituting urine with a synthetic or another animal or using chemicals, according to Quest Diagnostics.

Despite increased drug test failure rates, companies like DTE don't plan to create different policies for their safety-related, federally mandated workforce and their white collar office workers not covered by federal rules.

"I just can't see moving to a place where certain employees have different rules," Antishin said. "That could be bad for our culture."

However, a place where drug testing for marijuana is increasingly going to the wayside is in the retail and hospitality sectors as it faces increased labor shortage pressure from higher paying industries, said Brett Rendeiro, partner at Butzel Long PC in Birmingham.

"If they tested, they wouldn't have anyone showing up to work," Rendeiro said. "In any job where they strongly suspect marijuana use — bartenders, clerks, gas station attendants, etc. — they choose not to test."

Justin Winslow, president and CEO of the Michigan Restaurant and Lodging Association, said members reported 6.7 percent in wage inflation last year, resulting in many being unable to afford proper staffing. And because wages are even higher in other industries, retailers ditching drug testing is one way to incentivize a workforce.

"For our more engaged and astute operators (drug testing decisions are) research driven given what happened to the hospitality workforce in Colorado after recreational marijuana was legalized," Winslow told Crain's in an email. "Large swaths left to work in both manufacturing and retailing segments of the industry making $18-plus (an hour) to start. For others, it is the raw scarcity of an available workforce to meet their staffing needs. There is a de facto reality that the difficult task of properly staffing your establishment in 2019 becomes virtually impossible in the recreational marijuana era."

Rendeiro and McAllister believe more companies will forgo testing if the federal government makes recreational marijuana use legal. Pressure is mounting as 10 U.S. states, and Washington, D.C., have legalized recreational use with several more considering it either in upcoming elections or legislatively.

Ultimately, however, the courts may decide whether employers can screen for marijuana in pre-employment drug testing, Rendeiro said. When Maine legalized recreational use in February 2018, the law prohibits employers from refusing employment to anyone over 21 years old who consumes marijuana. In other words, they can't prohibit employment for failing a drug screening for marijuana.

"There is a trend afoot," Rendeiro said. "I think it eventually hits us in Michigan and then many of these pre-employment drug policies won't matter anymore."