By: Brandon Blomgren
As of April 2022, eighteen states, two territories, and the District of Columbia have legalized small amounts of cannabis for adult recreational use. As states continue to adapt to the everchanging marijuana climate in the United States, it is important to consider the potential impact the legalization of marijuana can have on the workplace. One area of focus centers around impairment, specifically whether any scientifically proven technology exists in the marketplace that can detect if an employee is “high” on the job. Law enforcement officials assess impairment on a daily basis during traffic stops, and when an officer suspects the driver is under the influence of alcohol the driver will be asked to take a breathalyzer test. But what if the police suspect the driver has consumed cannabis? Some legalization advocates and lawmakers want cannabis to be regulated like alcohol and a handful of states have established “per se” limits making it inherently illegal to drive with specific concentrations of the psychoactive cannabis compound delta-9-tetrahydrocannabinol (THC) in one’s system. The problem is if police believe someone is driving high, they’ll have a difficult time proving it because marijuana tests typically rely on urine samples which may only indicate that someone has used marijuana over the past days or even weeks, not whether they are actively impaired.
With many states now legalizing marijuana across the country it is reasonable to believe that most of the adults residing in one of these “cannabis friendly” states will also be employed. As noted above, because a positive urine,blood, hair, or saliva test result for THC only indicates the likelihood of prior use without revealing when the cannabis was actually consumed,
the “impairment issue” will also be problematic for employers. One solution law enforcement and employers are looking to is potential marijuana breathalyzers tests. Several startups are actually in the process of building these “cannabis breathalyzers” that will instead deliver results about recent marijuana use, on the spot. The devices will provide employers with reassurance that their workers are not high on the job, and employees who legally smoked marijuana the day before the test will not, presumably, be penalized. According to Noah Debrincat, the founder and CEO of SannTek Labs (one startup working on a marijuana breathalyzer) “[a]ny level of marijuana on the breath would be evidence that someone has used the drug within a relatively recent time period, but that’s not easy to do because the concentration of THC is extremely low in the breath, even in those who are clearly intoxicated.”
Companies like SannTek claim that the respective technology will be capable of detecting marijuana use immediately after consumption, which essentially provides evidence of potential impairment. However, even if these methods do work and it is possible to detect recent marijuana use, how do you prove that the level at which you’ve detected it causes impairment or not? For alcohol, the law has declared that .08% blood alcohol concentration is the level in which you’re intoxicated, but because we don’t have that with marijuana, nobody knows at what specific point someone is actually impaired. Until the necessary research is conducted to establish a legal limit these devices should only indicate consumption and not impairment.
 See Michael Hartman, Cannabis Overview, NCSL (July 6, 2021), https://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx.
 See Thomas Moore, Marijuana: Its Effect on Workplace Safety, OnePetro (Feb. 21, 2021), https://onepetro.org/PS/article-abstract/66/02/34/459910/Marijuana-Its-Effect-on-Workplace-Safety?redirectedFrom=fulltext.
 See Amanda C. Lewis, Driving While Baked? Inside the High-Tech Quest to Find Out, Wired (Feb. 15, 2022, 6:00 AM), https://www.wired.com/story/weed-dui-test/; see also Chris Roberts, Study: Sure Looks Like ‘Marijuana Breathalyzers’ Don’t Work—And May Never Work, Forbes (Dec. 31, 2021 4:29 PM), https://www.forbes.com/sites/chrisroberts/2021/12/31/study-sure-looks-like-marijuana-breathalyzers-dont-work-and-may-never-work/?sh=31ed70fa5c3b (“[T]o date, no successful “marijuana breathalyzer” device has been introduced to the market.”).
 See Michelle Behan, Are Sobriety Tests Required When a Driver Is Pulled Over for Dui?, Legal Res., (last visited Apr. 1, 2022), https://www.hg.org/legal-articles/are-sobriety-tests-required-when-a-driver-is-pulled-over-for-dui-60928.
 Alicia Wallace, Testing Drivers for Cannabis is Hard. Here’s Why, CNN Business (Jan. 02, 2020, 4:50 PM), https://www.cnn.com/2020/01/02/business/cannabis-breathalyzers-are-coming-to-market/index.html.
 See Sarah Kessler, The Best Use of a Pot Breathalyzer Isn’t for Driving, It’s for Jobs, OneZero (Oct. 18, 2019), https://medium.com/one-zero/the-best-use-of-a-pot-breathalyzer-isnt-for-driving-it-s-for-jobs-37d94a6effe5.
 See Jeremy Burke et al., Marijuana Legalization is Sweeping the US. See Every State Where Cannabis Is Legal, Business Insider (Feb. 23, 2022, 3:30 PM), https://www.businessinsider.com/legal-marijuana-states-2018-1.
 See Karen Moeller, Urine Drug Screening: Practical Guide for Clinicians, Mayo Clinic (Jan. 2008), https://www.mayoclinicproceedings.org/article/S0025-6196(11)61120-8/fulltext (noting how cannabis is detectable for up to one week after only a single use, and 10-15 days after daily use).
 See Scott E Hadland & Sharon Levy, Objective Testing – Urine and Other Drugs Tests, at 2 (July 25, 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4920965/ (noting that blood tests may offer the earliest and shortest window for detection of substances); but see Id. at 20 (illustrating how blood tests can be expensive, invasive, requires training, and may not be an option for all individuals due to poor venous access).
 See Hassan A. Kanu, Hair-Follicle Drug Testing: Lessons for Employers, Bloomberg L. (Oct. 19, 2016, 4:51 PM), https://news.bloomberglaw.com/daily-labor-report/hair-follicle-drug-testing-lessons-for-employers; See generally Hair Tests: Unreliable and Discriminatory, ACLU (June 27, 1999), https://www.aclu.org/press-releases/hair-tests-unreliable-and-discriminatory (suggesting that hair follicle drug tests are unreliable and discriminatory because people with dark hair, and thus higher concentrations of melanin, are far more likely to test positive).
 See Hadland & Levy, supra note 8, at 20 (noting that saliva tests provide a short window of detection).
 See Stacy Hickox, It’s Time to Rein in Employer Drug Testing, 11 Harv. L. & Pol’y Rev. 419, 424 (2017).
 See Lewis, supra note 3.
 See Kessler, supra note 5.
 Chris Taylor, Is This Weed Breathalyzer for Real? Don’t Hold Your Breath, Mashable (Feb. 27, 2019), https://mashable.com/article/hound-labs-marijuana-breathalyzer (stating that “[u]nless there’s a scientific breakthrough to find a biometric that indicates intoxication that’s currently unknown, marijuana breathalyzers may never work.”).