Employers must provide a safe work environment and they want to ensure their employees are productive, but is maintaining a drug-testing program to help achieve these goals worth the hassle? The answer may depend on the workplace.
As the coronavirus crisis continues to impact the workplace and the economy, drug-free-workplace initiatives have become more complicated to administer, thus reducing their popularity despite increased drug use nationally, research shows.
“There’s a labor shortage in some industries due to COVID-19-related illnesses, unemployment subsidies, fear and child care issues,” notes Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich. “As a result, employers are grappling with finding qualified applicants.”
Welch says employers have to consider the needs of the business, in addition to any applicable state laws. But does that mean companies should give new hires a pass rather than test them for drug use? It appears the verdict is still out.
Rethinking Marijuana Testing
Attitudes toward cannabis have changed in recent years. According to Gallup, about 66 percent of Americans favor legalizing marijuana, which is the highest percentage in 50 years of polling.
In some states where marijuana is legal, such as California, cannabis dispensaries have remained open during coronavirus closures because they’re considered essential businesses.
Employers that test for marijuana use may decide to revisit their policies, as marijuana sales appear to be hitting record highs in states where the drug is legal under state law, says Jill Vorobiev, an attorney with Reed Smith in Chicago.
Some employers are federal contractors, or they hire drivers and have to follow specific drug-free-workplace laws. Jobs that are subject to U.S. Department of Transportation (DOT) and other regulations will still require screening during the COVID-19 crisis, so employers should review DOT guidance.
Other employers are struggling to find qualified employees and think that drug testing—particularly for marijuana—will hinder their ability to attract and retain talent.
Employers that drug test typically use a five-panel screen that tests for amphetamines, cocaine, marijuana, opiates and phencyclidine (PCP). Some employers, however, have dropped marijuana from the panel as medical and recreational cannabis use has become more socially acceptable and states are legalizing use of the drug.
“More and more employers appear to be treating marijuana use like alcohol use and ignoring off-duty recreational use,” Welch notes.
She recommends that employers that decide to continue screening for marijuana use mention the drug-testing requirement in job postings. This will help employers screen out candidates who can’t pass the test.
As the pandemic persists, businesses may consider using mobile testing services as an alternative to sending employees to a clinic.
Employers that continue testing or disciplining for marijuana use must know the applicable state laws, including the court decisions that interpret those rules. Keeping up with these laws is challenging for employers because so much is changing all the time, says Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y.
Risks and Rewards
Dr. Todd Simo, chief medical officer at employment background screening firm HireRight, explains that when considering any employment drug-screening program, a company should be looking at four dominant factors:
- Risk mitigation.
- Candidate experience.
“Companies that value risk mitigation should really consider a drug-free-workplace program,” Simo says. Drug testing is effective in preventing accidents, health issues and related costs, absenteeism and litigation, he says. Screening can also protect employees from injury and improve productivity.
However, drug testing also can be expensive, slow down the hiring process and negatively affect the candidate experience.
“Let’s face it: No one likes to have a drug screen collected,” Simo says. “Beyond the illicit user that avoids companies that drug test, the clean-and-sober person hardly cherishes the opportunity to prove that he or she is not a drug user.”
Consider When to Test
Generally, employers will choose one or more of the following four situations to administer a drug test:
When observable behaviors trigger reasonable suspicion.
Pre-employment drug testing is the most common type of drug test, according to Quest Diagnostics, which provides drug-screening services. Most states allow pre-employment drug screens, though some require employers to provide notice to applicants.
Courts have generally ruled that pre-employment drug screens for illegal drugs do not constitute medical examinations under the Americans with Disabilities Act. However, the Equal Employment Opportunity Commission has said that such screens should be administered after a conditional offer of employment has been made because the employer may need to ask job applicants follow-up medical questions based on the results.
Further, it may be easier to cut ties with a candidate who fails a drug screen than with an employee who is already trained and contributing to the company. “Testing an applicant is different than testing an employee,” Russo at Jackson Lewis says. “They don’t work for you yet.”
Businesses with employees who work in safety-sensitive jobs may want to conduct ongoing screens after workers are hired. Some employers like to randomly screen workers who drive, operate heavy equipment or work on dangerous construction sites.
“If you’re in a random testing pool, you never know when you’ll get picked,” Russo says. “It’s pretty effective as a deterrent.”
But employers should note that laws on random drug testing vary from place to place. Some locations restrict their use, and others prohibit them altogether.“Multistate employers must be really conversant with the laws in the locations where they operate because they vary so much,” Russo notes.“Multistate employers must be really conversant with the laws in the locations where they operate because they vary so much,” Russo notes.
“Multistate employers must be really conversant with the laws in the locations where they operate because they vary so much,” Russo notes.
Employers may also want to conduct drug screens after accidents to determine if on-the-job intoxication may have contributed. Quest Diagnostics recommends that post-accident testing be done within 12 hours of the incident.
“Different drugs may have different windows of detection,” according to the company’s website. “Generally, employees should not return to work until after test results have been received.”
The federal government has clarified that most workplace drug-testing programs are permissible under the Occupational Safety and Health Act, but employers should be careful not to implement post-accident drug-testing policies that are written in such a way as to deter workers from reporting accidents. For example, rather than saying, “Any worker involved in any accident will be screened for drug use,” employers may want to screen only workers who could have actually contributed to the incident.
What if an employee appears to be under the influence? Simo recommends that all employers develop a program to test employees when they reasonably suspect employees may be intoxicated. “This testing can be done on an ad hoc basis at any occupational health clinic,” he says.
What to Do When an Employee Fails a Test
So you decided to screen workers for drug use because you want to maintain a safe and productive workplace. But what should you do when workers flunk the test? Should employees be fired, given another chance or referred to an employee assistance program? Employment attorneys say consistency is key.
"Employers should have strong policies in place addressing whether or under what circumstances they will engage in dialogue with an employee or applicant who fails a drug test," says Jill Vorobiev, an attorney with Reed Smith in Chicago.
Policies also should take into account any state laws that may apply to failed drug tests and whether the employer might need to make reasonable accommodations for workers with disabilities, she says.
State laws vary regarding the steps employers must take after an employee fails a drug test. For instance, some states require employers to provide certain notices to workers when an adverse action will be taken based on a failed drug test, and in some locations, the employee must be given the opportunity to contest the results and retest.
In a few states, an employer can't fire someone for the first failed drug test if the employee agrees to complete a rehabilitation program. And under federal law, employers may need to follow Fair Credit Reporting Act notice requirements if they use a background-check company to obtain the results from a drug-testing lab.
An increasing number of states have legalized medical or recreational marijuana use, so employers will need to review those laws before making employment decisions based on failed drug tests. Currently, 33 states have legalized medical use, and 11 states and Washington, D.C., have given the green light for recreational use.
Some industries, safety-sensitive jobs and federal contractors must comply with federal drug-testing rules that dictate the steps employers must take, and they are generally excluded from state-law limits on drug testing.
Employers should note that even in states where marijuana use is legal, some statutes and court interpretations specifically provide workplace protections—particularly for registered medical-marijuana patients—and others make clear that employers do not have to accommodate any marijuana use, even when it's off-duty. "This is a complex issue that will vary by state," says David Morrison, an attorney with Goldberg Kohn in Chicago.
Court interpretations also vary. In some states, courts have held that federal law pre-empts state medical-marijuana laws. In other states, courts have rejected that argument.
"When an employer receives a positive test result for marijuana and the applicant or employee claims to be a medical-marijuana user, the employer should avoid making any knee-jerk decisions," says Jennifer Mora, an attorney with Seyfarth Shaw in San Francisco.
Drug-testing rules can be particularly complex because they may require medical knowledge in addition to an understanding of applicable federal, state and local laws.
Furthermore, employees may offer excuses for failing a drug test: They ate too many poppy-seed bagels, accidently picked up the wrong brownie at a party or were stuck in a car with someone who was smoking weed. Perhaps they'll argue that the test result is wrong. Employers need to consider how they'll handle these situations.
"I recommend employers use third-party drug-testing facilities with a medical review officer," says Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich. "The medical review officers generally know if job applicants or employees are not being truthful because the tests themselves already account for poppy-seed bagels, secondhand smoke intake and the like."
Dr. Todd Simo, chief medical officer at employment background screening firm HireRight, notes that the medical review process helps protect employee privacy by giving workers an opportunity to provide a reasonable, verifiable and legal medical explanation for a failed test. If the worker has an acceptable explanation for the result, the drug screen is reported to the employer as a negative test result, as it would be reported if no drugs were found. —L.N.-P.
Employers don’t have to accommodate on-the-job impairment from marijuana or prescribed drugs, but off-duty use may be protected, and an employer may be required to engage in a dialogue with a worker to see if a reasonable accommodation can be made.
When it comes to medical-marijuana accommodations, employers have a number of factors to consider, Reed Smith’s Vorobiev says. Imagine the employee or job applicant is a registered medical-marijuana user in a state that allows cannabis use to treat a disability. The employer may need to explore possible accommodations.
The employer doesn’t necessarily have to approve the precise accommodation that the employee seeks, notes Jennifer Mora, an attorney with Seyfarth Shaw in San Francisco. But engaging in a dialogue “shows that the employer is mindful of the issues and might go a long way in preventing unwanted litigation,” she explains. In most lawsuits that have been resolved against the business, the court noted the employer’s failure to engage in any dialogue whatsoever.
Under federal and state laws, an employer may be required to initiate an interactive process with a worker who uses prescription drugs. “Employers may consider stating in their policies that they will engage in a reasonable accommodation process where legal marijuana or prescribed drugs are at issue,” Vorobiev suggests.
Think About the Job’s Safety Risks
If employees in some jobs come to work impaired, they could seriously harm themselves or others. “I find, in general, that employers that want to do drug testing usually have some employees who are performing dangerous or safety-sensitive jobs,” Russo says.
She recommends that employers analyze the job’s safety risks. “That’s not to say that employees in general office jobs don’t pose a risk, but employers have a more compelling reason to drug test for safety-sensitive roles.”
Companies can have different drug-testing rules for different positions. “A drug test is really no different than a background investigation,” Simo says. “Depending on the position, the type of investigation that is conducted can be different.”
Focus on Reasonable Suspicion
Despite marijuana’s complicated legal status, employers never have to tolerate on-the-job use or intoxication. “So reasonable-suspicion tests still make sense, because employees can’t come to work impaired,” Russo says.
Post-accident tests can pose some problems, she explains, because marijuana stays in a person’s body for a long time after use. A person could vacation in Canada (where recreational use is legal), smoke weed or have an edible while there, come back to work in the U.S., get tested either randomly or after an accident, and test positive despite never being impaired at work.
“Now the employer is in a tough position,” Russo notes. What should an employer do when the worker says, “I used it lawfully outside of work”? Employers that test post-accident must be prepared to respond.
David Morrison, an attorney with Goldberg Kohn in Chicago, suggests that when employers are seeking to test only for impairment, they should train managers and supervisors on ways to reasonably observe when someone is working under the influence. Be sure to mention in the substance-abuse policy that the refusal to take a drug test can be grounds for termination, he says.
Testing based on reasonable suspicion could be prompted by the following observations:
- Strong odors.
- Questionable movements, twitching or staggering.
- Dilated pupils or watery eyes.
- Flushing, confusion or blank facial expressions.
- Slurred speech or an inability to verbalize.
- Drowsiness or argumentative or irritable behavior.
- Sleeping, falling unconscious or otherwise being unresponsive.
If employers choose not to drug test, they can still monitor for performance issues that may stem from drug or alcohol abuse. “If someone comes to work clearly drunk or high, you may not even need a drug or alcohol test,” Russo notes. “It comes down to a performance issue, so make sure you’re documenting and disciplining inappropriate behavior.”
Lisa Nagele-Piazza, J.D., SHRM-SCP, is SHRM’s senior legal editor.
SHRM provides advice and resources to help companies and employees navigate the complexities of workplace drug testing.
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