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This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
Note: This article is provided for educational purposes only and should not be relied upon as legal advice. The reader retains full responsibility to ensure compliance with all applicable laws relative to drug testing. The opioid crisis and legalized marijuana flood the newswires with information on the cost of drug use and the complications it causes both personally and professionally. It also leads to questions and confusion – who regulates employee drug testing? The answer is not always black and white, but understanding each of the different types of laws and regulations that apply helps to make it easier. Employee drug testing is generally presumed to be lawful unless there is a specific restriction in a state or federal law. This article will emphasize some of the state requirements and how they apply to workplace drug testing. Many states have laws that regulate workplace drug testing and although state law is applicable only in that specific state, many employers operate in multiple states and therefore need to comply with the state laws in all states in which they do business. All state laws vary and there is no “one size fits all” rule that applies throughout the country. State law applies to business entities, corporations, organizations, or employees based in and/or operating in that state. Before delving into each state and their specific laws it is critical for employers to understand the different types of state laws and how they affect testing programs. Employers who understand the requirements of state laws benefit by having a successful workplace drug testing program in addition to protections afforded by compliance with state laws. Following are types of state laws and how they might affect your workplace drug testing program. Mandatory Requirements A mandatory requirement is one required by a law or a rule for the city or state that has the statue or ordinance governing drug and/or alcohol testing. It must be followed by employers to comply with the statutory testing requirement. Employers who test in states with “mandatory” laws are required to follow the state’s specific requirements noting, however, that some cities have their own specific laws (Boulder, CO and San Francisco, CA) and other mandatory state laws apply only to specific industries operating within that state (West Virginia Mining Industry). Workers’ Compensation Premium Reduction Requirements There are states that offer a discount on workers’ compensation premiums under the state’s workers' compensation law. Employers may voluntarily decide to comply with this statute in order to receive a discount offered by the state. Some states have specific testing requirements that must be followed to qualify for this benefit while others simply provide training and education but do not specifically dictate testing. Workers’ Compensation/Unemployment Compensation Denial Requirements Most states offer employers the ability to deny or reduce claims benefits to employees. In circumstances where an employee is injured and it is determined that drug use was a contributing factor to the injury, employers may deny workers’ compensation benefits. Similarly, employees who are discharged due to drug abuse in the workplace may be denied unemployment benefits. There may be specific testing requirements that must be followed to qualify for this benefit. Employers are not required to comply, unless they wish to deprive employees of these benefits. Limited Protection Requirements There are a handful of states that have laws that offer benefits or protections to employers regarding drug and alcohol testing (e.g., rebuttable presumption that a test result is valid, limitation on actions for defamation or false positives, etc.). There may be specific testing requirements that must be followed to qualify for this benefit. Employers are not required to comply with the statute unless they wish to receive these benefits. Marijuana Requirements A significant majority of states have legalized medical marijuana and almost half have legalized recreational marijuana. The medical marijuana laws may require certain requirements to be followed as part of workplace testing as well as hiring decisions. Employers that have testing programs in states that have medical marijuana laws are required to follow the state specific requirements. There are also states that have legalized recreational marijuana. In these states the recreational use and its impact on the workplace varies and will likely continue to be refined in case law. Case Law Case law is law established by judicial decisions in cases as distinguished from law created by legislation. There are many case laws that impact workplace drug testing. Whether there is an existing law or no law established, a judge can make an interpretation of law which can be referred to as precedents. Several states have case law in place of mandatory law, California is one of them, and for employers in those states it is critical that they understand case law and how it will likely apply to them as they develop their policies. Legal Liability (POCT) With the ease of point of collection testing (POCT) comes the precedent of legal liability. When collecting a rapid result urine sample, an employer must perform as the laboratory does in some states (ex. New York). This includes ensuring the sample was properly collected according to state/federal regulations, running the instant urine assay correctly, interpreting the test result, and ensuring a quality assurance and quality control program to safeguard the integrity of the devices used and the procedures followed. The outcomes of the test result may involve subsequent disciplinary action. The legal liability for a POCT is much greater than collecting a specimen and sending it off to a lab for analysis. There are far more processes open to potential error and mishandling. Conclusion For some employers, there may be no specific drug testing requirements to implement as part of the testing program. However, laws change and it is important to keep track of the laws that may affect your program. On the other hand, some employers may be required to follow multiple laws and must understand how they all come together. In all cases, it is essential that employers understand the nuances of the different laws that apply to their workplace. Before proceeding with a workplace testing program, check for laws that might apply to you. © 2010-2024 DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required. This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein.
Have you ever heard the old expression that there are “lies, damn lies, and statistics?” Statistics can be twisted to support virtually any narrative, but they usually also hold some truth. While researching every study, report, survey, and white paper available about drug testing and workplace drug abuse you would have a collection of all the statistics people needed to justify drug testing. The source of these stats are often withheld. So, it is prudent to maintain the sources to verify every claim being made. The Nuts and Bolts of Statistics There are two kinds of surveys, studies, or reports, the ones that are time-sensitive and must be updated regularly, and the ones that are timeless, the results of which remain valid for many years. For instance, how many people use marijuana changes every year and reports must be updated annually to accurately reflect usage trends. But a study on how marijuana affects workers trying to perform safety-sensitive jobs rarely if ever needs to be updated; after all, it’s not as if users somehow become better at being impaired. In the study by Bill Current in 1992 called “Does Drug Testing Work?” many statistics fall into the latter category of statistics, the kind that are more or less timeless. Some of these reports are “oldies but goodies,” but they are as relevant now as they were when they first came out. One example is a study conducted by the U.S. Postal Service (USPS) that attempted to determine if there was a correlation between drug use and job performance. The findings were groundbreaking at the time. The USPS Survey: Summarized A 1994 book entitled “Under the Influence? Drugs and the American Work Force,” which is summarized at the National Library of Medicine, includes information about several studies including the USPS report.[i] I highly recommend that website. Beginning in September 1987, USPS drug tested 5,465 job applicants at 21 sites across the country. Test results were kept confidential and results were not considered during the hiring process. A total of 4,396 applicants were hired, including 395 who had tested positive (65% for marijuana, 24% for cocaine, and 11% for other drugs). After about 8 months with USPS, employees from the test-positive group were absent at a rate 45% higher than those in the test-negative group. The test-positive group also showed a 40% higher dismissal rate compared with those who tested negative. Over time, the gap in these key indicators of performance widened. After an average of 1.3 years on the job, the test-positive group showed a 59% higher rate of absenteeism and a 47% higher rate of involuntary separation or being terminated. After 2.4 years, both the absenteeism and turnover gaps between the two groups increased again: the test-positive group’s absenteeism and termination rates were 66% and 69% higher, respectively, than the test-negative group. Finally, after 3.3 years on the job, the disparity in absenteeism rates remained at 66%, but the disparity in termination rates had increased to 77%. In an analysis of the reasons for leave (sick leave, leave without pay, and absent without official leave—AWOL) the greatest was for AWOLs, easily the most serious and negative reason for leave. Finally, the study found that the test-positive group was more likely to be formally disciplined (a risk ratio of 2.44) and to experience problems requiring the services of a formal employee assistance program (EAP) (a risk ratio of 2.67). Dollars & Cents USPS determined that it would have saved approximately $4 million per year in lost productivity if it had not hired those who tested positive. That would be the equivalent of about $10.2 million in 2024. The accrued savings for one class of new employees over their tenure was estimated at $52.7 million or $133 million in 2024. Why is this Report Timeless? The USPS report is as relevant today as it was when it was first released because drug-using employees are still as unreliable as ever. It’s not as if drug users have spent the last 35 years learning how to be more reliable while maintaining their drug abuse lifestyles. Drug abuse still affects people the same way today as it did then, and that’s true in the workplace, on highways, and everywhere else in society. Conclusion Due to the difficulty some employers experience finding people to fill vacancies, they may be tempted to reconsider the value of pre-employment testing. Wouldn’t they be better off not knowing who the drug users are so they can put people to work? Well, probably not. Consider the following:
The sad truth is most drug users don’t make good employees. As the Postal Service report shows, they are less reliable and more likely to be involuntarily terminated… fired for being unreliable, not showing up for work, and a host of other performance-related issues. Although we live in the age of legal marijuana and increased drug-user rights, employers still have rights too, including the right to hire the best candidate for the job, which is usually someone who can pass a pre-employment drug test. © 2010-2024 DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required. [i] National Research Council (US) and Institute of Medicine (US) Committee on Drug Use in the Workplace; Editors: Jacques Normand, Richard O. Lempert, and Charles P. O’Brien. Washington (DC): National Academies Press (US); 1994. ISBN-10: 0-309-04885-0https://www.ncbi.nlm.nih.gov/books/NBK236255/ [ii] Pre-Employment Drug Screening Correlated to Lower Post-Accident Drug Screening Positivity. First Advantage. 2021. file:///C:/Users/bcurr/Documents/Current%20Consulting%202023/First%20Advantage/Pre-Employment%20Drug%20Screening%20Correlated%20to%20Lower%20Post-Accident%20Drug%20Screening%20Positivity.pdf [iii] Post-Accident Workforce Drug Positivity for Marijuana Reached 25-Year High in 2022, Quest Diagnostics Drug Testing Index Analysis Finds. Quest Diagnostics. May 2023. https://newsroom.questdiagnostics.com/2023-05-18-Post-Accident-Workforce-Drug-Positivity-for-Marijuana-Reached-25-Year-High-in-2022,-Quest-Diagnostics-Drug-Testing-Index-Analysis-Finds |
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