Drug testing, one of the major components of the government’s war on some drugs, like the unpopular policy itself, may be waning as cannabis commerce replaces prohibition.

According to the American Management Association, drug testing in the workplace hit a peak in the late 1990s*. Back then the federal government, under Presidents Reagan and Bush 1.0, was the major proponent for mass drug testing in society. Testing was pitched by government, law enforcement, and of course, the drug testing industry as a virtual silver bullet for curing society’s ills regarding illicit drug use, notably long-lasting, in-the-body cannabis.

How’s it worked so far?

A major driving factor in pushing drug testing from government workers and military personnel to the general workforce is the Drug Free Workplace Act of 1988. It effectively makes any company that wants to do business with the federal government have to adopt drug testing to be considered for lucrative government contracts.

But what will happen now with four states fully legal with taxed and regulated cannabis commerce, and 25 other states with medical access? Can a state-licensed medical cannabis patient be subject to drug testing in the workplace for a non-safety sensitive position? Regrettably, the legal answer here for the moment is yes. What is the continued utility in mass drug testing for cannabis in a society where only the misuse and/or abuse of alcohol products warrants such? How can the underlying fact that modern drug testing does not measure for impairment, but instead, only for past use, still stand to reason as a justification to continue its use en masse?

A likely crack in drug testing’s armor was incurred recently when the federal government’s Occupational Safety and Health Administration (OSHA) issued a ruling in an administrative legal proceeding that partially undercuts the drug testing industry.

Employers are going to have to examine their post-incident drug testing policies in light of OSHA’s stance against blanket mandates of such tests.

OSHA’s Improved Tracking of Workplace Injuries and Illnesses rule does not ban drug testing of employees, but it does prohibit employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses, according to the final rule, published in May and taking full effect Jan. 1, 201).

The rule is the latest and firmest sign that the agency will frown upon mandatory post-accident drug testing without a compelling reason.

Allen St. Pierre is the executive director of the National Organization for the Reform of Marijuana Laws (NORML) in Washington, D.C., norml.org

*The American Management Association conducted surveys of workplace surveillance and medical testing throughout the 1990s and into the 2000s. In 1991, drug testing of some kind was conducted by 63% of companies surveyed, growing to 81% in 1996, falling to 66% in 2000 and then to 62% in 2004. Drug testing of new hires was conducted by 48% of companies in 1991, growing to 68% in 1996, falling to 61% in 2000 and then to 54.5% in 2004. Drug testing of current employees was conducted by 52% of companies surveyed in 1991, rising to 70% in 1996, falling to 47% in 2000 and then to 44.3% in 2004.