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Drug abuse is up. Positive drug test results are up. The number of companies testing for marijuana is down. We know this from three major annual reports on substance abuse and drug testing: 1. The National Survey on Drug Use and Health (NSDUH) from the Substance Abuse and Mental Health Services Administration (SAMHSA), 2. The Drug Testing Index (DTI) from Quest Diagnostics, and 3. The Annual Drug Testing Industry Survey from the Current Consulting Group. The finger of blame can be pointed at one main culprit—the legalization of marijuana. As of August 2023, 40 states, including the District of Columbia, have made using marijuana legal for either medicinal or so-called recreational purposes. The trend to legalize marijuana corresponds precisely with the trend lines from these three major reports that indicate that substance abuse is here to stay, that drug testing is more needed than ever, and that the decision to drop marijuana from a company’s drug test panel is ill-advised at best and potentially dangerous and costly. SAMHSA’s Report According to the NSDUH released on January 4, 2023, substance abuse is on the rise.i Key findings include:
In other words, marijuana use is fueling America’s dramatic overall increase in substance abuse. And one specific key indicator within the NSDUH data portends more trouble on the substance abuse horizon. According to the report: “Among people aged 12 or older in 2021, 69.2 percent of people perceived great risk of harm from smoking one or more packs of cigarettes a day, and 68.4 percent perceived great risk from having four or five alcoholic drinks nearly every day. Percentages of people who perceived great risk from cocaine or heroin use once or twice a week were 83.7 and 92.3 percent, respectively. In contrast, about one fourth of people (26.5 percent) perceived great risk from smoking marijuana once or twice a week.”ii This may be why the NSDUH reported that in 2021, 2.6 million people tried marijuana for the first time.iii Bottom line: Marijuana use is up, fear of harm from using marijuana is down, and first-time marijuana users are in the millions. Quest Diagnostics Drug Testing Index The overall increase in substance abuse is no respecter of boundaries. The latest Quest Diagnostics Drug Testing Index (DTI) shows a direct impact on the workplace. “The overall positivity rate in the combined U.S. workforce, based on more than nine million urine drug tests, was 4.6% in 2022 and 2021, an increase of 31.4% from the all-time low of 3.5% just 11 years ago (2010-2012). In the general U.S. workforce, positivity increased 1.8% (5.6% in 2021 versus 5.7% in 2022) and was 11.8% higher than in 2018 (5.1% in 2018 versus 5.7% in 2021).”iv Regarding marijuana specifically among non-DOT tests, the DTI noted: “In the general U.S. workforce, marijuana positivity increased 10.3% year over year (3.9% in 2021 versus 4.3% in 2022). Marijuana positivity increased 11.8% (5.1% in 2021 versus 5.7% in 2022) in states in which recreational marijuana is legal and 8.3% (3.6% in 2021 versus 3.9% in 2022) in states in which medical marijuana is legal. In states in which neither recreational nor medical marijuana is legal, marijuana positivity increased 3.3% (3.0% in 2021 versus 3.1% in 2022) year over year and 14.8% over five years (2.7% in 2018 versus 3.1% in 2022).”v An increase in positive drug tests conducted after workplace accidents is particularly troublesome. “The rise in marijuana post-accident positivity among private employers mirrored an increase in overall drug positivity in individuals tested post-accident. In the general U.S. workforce, rates of post-accident drug positivity increased both year over year and over the past five years in nearly all specimen types tested. Over the last five years, in general workforce urine testing, overall post-accident positivity increased 22.6% (8.4% in 2018 versus 10.3% in 2022). Specifically, post-accident positivity as compared to pre-employment tests in urine specimens tested for marijuana and cocaine in the general U.S. workforce was higher by 58.7% and 230%, respectively.”vi Bottom line: The legalization of marijuana appears to be a key factor in the overall increase in workplace positive drug test results and for post-accident drug testing, as well. Current Consulting Group’s 25th Annual Drug Testing Industry Survey All of this brings us to the results of the Current Consulting Group’s 25th Annual Drug Testing Industry Survey.vii The legalization of marijuana continues to have a negative impact on employers’ drug testing policies. When drug testing providers were asked: “Have you had clients drop marijuana from their drug test panel in the last year?”:
The top reasons why employers drop marijuana from their drug test panel include:
With so many employers dropping marijuana from their drug test panel, it is not surprising that nearly 33% of providers said in five years employers will no longer test for marijuana while 36% said employers will still test for marijuana but it will be a lot fewer. Only 20% predicted that just as many employers as now will still be testing for marijuana. When asked if employers who drop marijuana from their drug test panel will eventually reinstate it, 50% said “probably not.” About 10% said “many if not all” will add marijuana back into their panel. Conclusion What does all of this mean for employers? Here are three key take-aways: First, with substance abuse trends heading in the wrong direction, it would be a bad time to discontinue drug testing all together. For those employers considering dropping marijuana from their drug test panel, it would be wise to at least include it when conducting reasonable suspicion and post-accident tests if not for all testing situations. Second, Current Consulting Group’s survey indicated a significant shift toward oral fluid drug testing. When survey participants were asked: “In the future, what drug testing specimen will be used the most?”, only 46% said urine (down from 50% in the previous year’s survey) while 46% indicated it will be oral fluid (up slightly from 45%). Just a few short years ago it was inconceivable to imagine oral fluid would be in a dead heat with urine. The advantages of oral fluid testing, including the ability to detect recent drug use and a relatively shorter window of detection when compared to urine and hair but that still covers the entire 3- to 10-hour cannabis window of impairment make it possible for employers to continue testing for marijuana and address workplace safety concerns while simultaneously not prying into the private lives of their employees.viii Third, 57% of participants in Current Consulting Group’s survey indicated they believe drug testing will increase over the next five years. In the final analysis for employers, it comes down to workplace safety and protecting the bottom line. For those reasons, among others, drug testing is here to stay. [i] Key Substance Use and Mental Health Indicators in the United States: Results from the 2021 National Survey on Drug Use and Health National Survey on Drug Use and Health. SAMHSA. January 2023. https://www.samhsa.gov/data/sites/default/files/reports/rpt39443/2021NSDUHFFRRev010323.pdf [ii] Ibid. p. 28. [iii] Ibid. p. 26. [iv] Increase Seen in the General U.S. Workforce Started Same Year First States Legalized Recreational Marijuana Overall Workforce Drug Test Positivity Persisted at Two-Decade High Across All Workers. Quest Diagnostics Drug Testing Index. Press Release. May 18, 2023. Find more information and the full brochure here: https://www.questdiagnostics.com/business-solutions/employers/drug-screening/knowledge-center/drug-testing-index [v] Quest Diagnostics Drug Testing Index. 2023. [vi] Post-Accident Workforce Drug Positivity for Marijuana Reached 25-Year High in 2022, Quest Diagnostics Drug Testing Index Analysis Finds. The Quest Diagnostics Drug Testing Index™ (DTI). May 18, 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 [vii] Current Consulting Group’s 25th Annual Drug Testing Industry Survey. May 2023. [viii] Scientists put the stopwatch on cannabis intoxication. April 2021. https://www.sydney.edu.au/news-opinion/news/2021/04/12/scientists-put-stopwatch-on-cannabis-thc-intoxication-lambert-drug-driving.html © DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of 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.
The Department of Transportation (DOT) has rigid requirements when it comes to the sample collection process. Collectors must hold DOT certification to perform DOT collections, and collection facilities must adhere to certain parameters to be used for DOT collections. DOT’s 10 Steps to Collection Site Security and Integrity is a document outlining these parameters. It is often posted in collection facilities serving as an educational tool for both collectors and donors. While some of the steps on the security and integrity document are straightforward and self-explanatory, some warrant further discussion, especially for those who are new to the DOT collection process, or for those wanting to further develop their understanding of the drug testing industry. In this article we will take a closer look at this document and discuss the importance of each step, ultimately revealing how all these steps work together to maintain collection site security and integrity. Step 1: Pay careful attention to employees throughout the collection process. Employees subject to drug testing may not always be willing participants. In some cases, an individual may attempt to cheat at some point during the collection process. Keeping a close eye on employees can help ensure that those efforts are minimized, and when something abnormal does occur it can be handled accordingly. Depending on the severity of the situation, the collector can decide the appropriate action, which includes performing a collection under direct observation, or terminating the collection process all together. Step 2: Ensure that there is no unauthorized access into collection areas and that undetected access is not possible. During the collection process, the collection facility should only be accessible to individuals involved with the collection process. With a few exceptions, only the collector and employee (donor) should be in the collection area while a collection is occurring. Exceptions include personnel who may be necessary to properly conduct the collection, e.g., observers, monitors, and translators. Unauthorized access to a collection area can lead to disruptions in the collection process. If a backdoor is present a donor could attempt to bring another person in to provide the sample. Step 3: Make sure employees show proper picture ID. An obvious step in the collection process is to verify the employee’s identification to ensure the collection is being completed for the correct person. However, only certain forms of identification are appropriate for DOT collections. Acceptable forms of identification include a photo ID issued by a Federal, state, or local government agency, identification by an employer or employer representative, or any other ID allowed under an operating administration’s rule (FMCSA, FAA, etc.). Step 4: Make sure employees empty pockets, remove outer garments, leave bags behind, and wash their hands. The goal of this step is to ensure that employees do not have the opportunity to conceal and carry something into the collection area that can affect the collection process. This is true as well for washing hands, as a motivated employee can apply an adulterant to their hands, such as bleach, that may be introduced into the sample to cheat. Although an employee must part with their personal items while providing a urine sample, they can be issued a receipt upon request by the collector to ensure all their items are accounted for once the collection is completed. Step 5: Maintain personal control of the specimen and CCF at all times during the collection. The Custody and Control Form (CCF) is the document used for all DOT collections. The CCF contains a unique specimen ID number that is printed on the form itself, as well as the sample seals that will later be affixed to the bottle containing the urine sample. A collector maintaining personal control of the CCF and specimen throughout the entirety of the collection process will help ensure that the correct sample will go to the lab, and the information provided on the CCF is accurate. Step 6: Secure any water sources or otherwise make them unavailable to employees. Some collection facilities are constructed tailor-made to accommodate DOT collections, but others are simply converting a standard restroom into a DOT-approved collection area. Shutting off and securing all available water sources during the collection process will thwart an individual from potentially using a water source to dilute or adulterate their sample. Step 7: Ensure that the water in the toilet and tank has bluing (coloring) agent in it. Toilets naturally have water in the bowl and tank, and access to this water cannot always be restricted. By adding a bluing agent to these water sources an employee is not able to use them to successfully dilute or adulterate their sample. Should an employee introduce blue water into their sample container, it would be dramatically obvious to the collector, who can then take appropriate action, such as requiring a directly observed collection. Step 8: Ensure that no soap, disinfectant, cleaning agents, or other possible adulterants are present. Although laboratories perform specimen validity testing on all DOT urine samples, removing the opportunity to introduce adulterants during the sample collection can streamline the overall process. The purpose of this step is to do just that and eliminate any opportunity for an employee to cheat. Step 9: Inspect the site to ensure that no foreign or unauthorized substances are present. Like steps six through eight, this step also works to minimize or even eliminate the opportunity for an employee to cheat. Virtually anything can be used as an adulterant, or at least attempted to be used, so inspecting the site is necessary to ensure a valid test result. Step 10: Secure areas and items that appear suitable for concealing contaminants. Employees who wish to cheat a drug test can be crafty. Areas such as ledges, trash cans, paper towel holders, and ceiling tiles may be used to conceal contaminants, or other items that may be used to alter a test. Collectors should inspect all potential hiding spots before each collection to ensure the collection area is secure. Conclusion The collector is responsible for ensuring that the security and integrity of the collection process is not compromised, which can be achieved by strict adherence to the ten steps outlined by the DOT. © DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of 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.
Drug testing is a complicated process, scientifically and legally. From the collection of a sample to the reporting of a result, there are many steps that must be done perfectly every time or providers and end users expose themselves to legal liability. Because we live in a highly litigious society, legal defensibility should be a top priority for both sellers and buyers of drug testing. What is Legal Defensibility? Legal defensibility can be defined as a company’s strategy for reducing exposure to legal risk. It does not necessarily mean avoiding legal challenges to a drug test program or test result, but it does mean being in the strongest position possible to legally defend your program and each individual test result. For this reason, and others, employers are well advised to do their homework before deciding which drug testing method to use. Federal Impact on Legal Defensibility There are only two drug testing methods that have been officially endorsed by the federal government: lab-based urine and lab-based oral fluid. For 30-plus years, urine testing was the only method permitted for federally mandated drug testing such as the drug and alcohol testing regulations of the U.S. Department of Transportation (DOT). On October 25, 2019, the Substance Abuse and Mental Health Services Administration (SAMHSA) issued final guidelines for lab-based oral fluid drug testing.1 On May 2, 2023, DOT issued final regulations for for lab-based oral fluid testing, adding yet another layer of credibility to oral fluid testing.2 That’s it! Those are the only two testing methods that offer the legal defensibility associated with federal guidelines. Other testing methods besides urine and oral fluid certainly have merit, especially hair testing, but as of now they do not offer testing procedures issued by the federal government. [Note: SAMHSA issued an NPRM for hair testing in 2020.3] State Laws and Legal Defensibility Compliance with state laws that affect workplace drug testing is also a critical element of strengthening the legal defensibility of a drug testing program. These include drug testing-specific laws, workers’ and unemployment compensation regulations, and legal marijuana laws. Some of these laws have very narrow guidelines for what testing methods are permitted and what can be done with positive test results. It is not uncommon for such laws to defer to the SAMHSA guidelines and require employers to employ those procedures, including which specimen may be used and what kind of laboratory can be employed. Remember, as well, that multi-state employers must comply with all applicable state laws. This means that a company headquartered in Texas with operations in several other states, must have a policy that reflects the laws and regulations for each state where it has employees who live and work. A base policy that reflects Texas requirements, for instance, with addendums for each additional state with legal requirements that differ from Texas is the most effective way to comply from a policy perspective. What if a Drug Test Result is Challenged? If your drug testing program is ever challenged or if an employee or applicant tries to contest the result of a drug test result, the use of the federal drug testing guidelines or those issued by a state law or government agency can provide legal cover. As an employer you want to be able to say that you observe approved drug testing procedures, that you consistently follow those procedures with every single drug test, and that you never deviate from those guidelines. The federal guidelines, for example, not only provide employers with legal defensibility, but they also offer those being tested the assurance that their urine or oral fluid sample (and someday, perhaps, hair) traveled a secure path from collection to result. Following are some of the key components of the federal guidelines that, when faithfully observed, strengthen the legal defensibility of a company’s drug testing program:
Regardless of the testing method being used (urine, oral fluid, hair, or an emerging technology), ensure that your program, to the extent possible, includes the above list of procedures to strengthen the legal defensibility of your program. Marijuana and Legal Defensibility The legalization of marijuana has put the employer community in virtually every industry on alert. Why? Because some marijuana laws place conditions on workplace drug testing. These conditions include an emphasis on recent-use detection and restrictions on what employers can do with a positive test for marijuana. This trend has caused some employers to question whether it is still legal to test for marijuana or even worth the trouble if positive test results may not be considered in making employment-related decisions. The good news is that testing for marijuana is legal in virtually all 50 states, with New York being the sole exception (though some exceptions apply in the Empire State). However, the marijuana situation is all the more reason for employers to rely on proven drug testing methods with years of history and procedural guidelines from the federal government. The fact that SAMHSA has now issued guidelines for lab-based oral fluid testing, which is the only federally approved recent-use drug testing method and is in the process of doing the same for hair testing, which is ideal for long-term drug use detection, should assure employers that drug testing is still a reliable way, when done right, to address workplace substance abuse and its devastating impact on safety and productivity. The 3 C’s of Legal Defensibility Following are three things every employer should do to ensure the highest level of legal defensibility when conducting drug testing: 1. Compliance—First and foremost, when it comes to legal defensibility you must comply with the laws and regulations that apply to your company. Every state has its own unique standards for drug testing; no two states are alike in this regard. But, as a multi-state employer you must comply with the legal requirements of each state where you have employees who work and live. This may sound complicated, but it doesn’t have to be. Research the laws and regulations in each applicable state and base your drug testing program on those legal requirements. 2. Comprehensiveness—Ensure that your drug testing policy includes everything possible about your program. For instance, explain what the policy requires, what would be considered a violation of the policy, and the possible consequences for policy violations. Further, describe how your drug testing program works, who is covered by it, when testing may occur, and how testing will be conducted. Describe collection procedures and what is expected of applicants and employees. More is better than less when it comes to your written policy. 3. Consistency—Whatever you say in your policy, do it that way every time with every test. Don’t make exceptions for management or your top salesperson. Treat everyone in your program the same and conduct drug tests the same way every time. Don’t offer second-chance agreements to some workers and not others. If a state law appears to allow exceptions and you want to take advantage of it, explain it in your policy so it is clear to all supervisors and employees. Be consistent. Conclusion It is unlikely that the federal government will approve any other drug testing methods besides urine, oral fluid, and hair in the foreseeable future. For now, especially under the present circumstances brought about by the legalization of marijuana and the legalization movement’s focus on limiting employers’ right to conduct drug testing, employers should make legal defensibility a top priority when choosing a drug testing method. [1] Mandatory Guidelines for Federal Workplace Drug Testing Programs— Oral/Fluid. 84 Fed. Reg. 57554. (October 25, 2019) (to be codified at 42 CFR Chapter I). [2] Part 40 Final Rule - DOT Summary of Changes. May 2, 2023. https://www.transportation.gov/odapc/Notice_Summary_May_2023 [3] Mandatory Guidelines for Federal Workplace Drug Testing Programs. 85 Fed. Reg. 56108. (proposed September 20, 2020) (to be codified 42 CFR Chapter I). © DrugPak – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of DrugPak. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required. |
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