Drug Test Your Workforce Lawfully, Effectively

Data shows a dramatic decline in positive drug tests among U.S. workers in recent decades, however, certain kinds of drug use has gone up in the last 10 years, and most drug users are employed, according to industry experts.

Quest Diagnostics’ 2013 Drug Testing Index indicated that the annual positivity rate for urinalysis drug tests, including both pre-employment and random testing for the combined U.S. public and private workforce, has fallen 74 percent to 3.7 percent in 2013, down from 13.6 percent in 1988.

A deeper look at the data, however, reveals that despite the decline in overall drug use, positivity rates have increased for certain kinds of drugs.

For the first time since 2003, the rate of positive drug tests among workers went up in 2013, largely due to the legalization of recreational marijuana in Colorado and Washington state in 2012, according to Quest Diagnostics. Positive rates for marijuana increased 20 percent in Colorado and 23 percent in Washington between 2012 and 2013, compared to a 5 percent increase on average among the U.S. general workforce in all 50 states. The positivity rate for amphetamines, including prescription medications such as Adderall, has nearly tripled in the general U.S. workforce since 1997, from 0.3 percent to 0.9 percent in 2013. Also troubling is the positivity rates for prescription opiates. The rate for these drugs has more than doubled over the last decade—oxycodone use alone has gone up 71 percent since 2005—and are reflective of national prescribing trends that have come under recent scrutiny.

According to the National Drug-Free Workplace Alliance, 75 percent of the 17.5 million illicit drug users 18 and over are currently employed.

“Employers conduct drug and alcohol tests on employees for a variety of reasons, but the biggest one is safety,” said Kathryn Russo, a shareholder at Jackson Lewis. “Particularly if you have employees that perform safety-sensitive or dangerous jobs, either driving vehicles or operating machinery, you want to ensure the safety of your employees and customers.” Other reasons to test include reducing injury risk, improving productivity, controlling insurance costs and reducing turnover, she added.

Setting Up a Drug-Testing Program

There is no comprehensive federal law that regulates drug testing in the private sector, leaving the issue open to state regulation. First, employers need to know which laws apply to them. “If you’re regulated by federal regulations, you may be required to test, for example under Department of Transportation regulations,” said Russo. “You may be required to test if you are in certain industries, or operate in certain states, such as coal miners in West Virginia.”

The possibility of attaining a workers’ compensation premium discount by testing is another consideration, though specific statutory requirements differ by state.

Is your workforce unionized? Drug testing is a mandatory subject of collective bargaining. “If you’ve got a union in place, you can’t just start drug testing unless you’ve negotiated with the union,” said Russo.

Deciding Which Test to Use

Employers not required by law to test have a range of choices as to which types of tests to conduct. The most common types of tests include pre-employment, pre-assignment, reasonable suspicion, random and post-accident. “Several of these may be restricted or prohibited in certain states and you’ve got to know what the laws are in the states that your company operates in,” said Russo.

Pre-employment testing is very popular, she said. But it should follow a conditional offer of employment. Pre-offer testing is not recommended because it could violate the Americans with Disabilities Act (ADA), said Russo. “The ADA does not permit employers to gather medical information about applicants prior to the time an offer is made,” she said.

Three states (Connecticut, Minnesota and North Carolina) have written notice requirements applicable to pre-employment testing. “Applicants should not start work until after a test result is received. Once they start working for you, they’re not applicants, they’re employees, and employees in some states have tremendous rights and it may be more difficult to let them go if you get a positive test result,” said Russo.

Pre-employment alcohol testing is not recommended because it is considered medical testing under the ADA, and so must be job-related and consistent with business necessity, she said.

Pre-assignment or pre-access testing is when customers require you to drug-test employees before they allow access to their premises. It is illegal in some states (Connecticut, Iowa, Minnesota, Montana, Oklahoma, Rhode Island and Vermont), and in the cities of San Francisco and Boulder, Colo. In these cases, “you may want to choose another type of test, such as reasonable suspicion,” said Russo.

Pre-assignment testing may violate privacy rights in certain states (California, Massachusetts, New Jersey and West Virginia) unless there are compelling safety reasons to test.

Reasonable suspicion testing, also known as “for cause” testing, “is the most common found in workplaces,” said Roger Kaplan, a shareholder at Jackson Lewis. It is generally accepted in all jurisdictions, he said.

Reasonable suspicion testing needs to be based on objective facts relating to a particular individual that would suggest to a reasonable person that the individual is under the influence in violation of a company policy. “Be mindful that there are state laws that define testing for reasonable suspicion,” Kaplan said. “It requires individualized suspicion, not rounding up the ‘usual suspects.’ ”

The timing of reasonable suspicion testing is critical and should be conducted within eight hours for alcohol and within 32 hours for drugs. “Supervisors should be trained on recognizing the signs and symptoms of drug use and on documenting the reasons for testing,” said Kaplan.

Random testing is unpredictable, and therefore highly effective, he said. “Just because a person is tested once, doesn’t meant they are excluded the next time. It’s best to use computer-generated random selection.” Random testing is prohibited in Connecticut, Rhode Island, Vermont and the cities of San Francisco and Boulder. Random alcohol testing is an issue under the ADA and not recommended, he said.

Post-accident testing should only focus on nontrivial, serious accidents and is particularly suited for safety-sensitive employees, Kaplan said. “The problem is you may sweep in victims to an accident along with the perpetrators. One option is to have a more selective approach where you only test those workers who contributed to or caused the accident,” he said.

Post-injury testing, as opposed to post-accident testing, can be too broad. “You’re really trying to test people who caused an accident by mishap, and not people who have been injured by an accident,” said Kaplan.

Drug-Testing Program Best Practices

Having a written policy is required by law in some states, but is a best practice everywhere, said Russo. “It’s helpful to the employer to have a written guide and to the employees, who want to know when they are going to be tested, what you are testing for and what will happen if they test positive,” she said.

Policies should define who is covered, explain the circumstances for different tests, and explain testing procedures and consequences for refusal to submit. “This is critical. I’ve heard of all kinds of situations where employees have done some kind of evasive maneuver to avoid the test,” said Russo. “For example, if someone delays going to a test for a day or two, that’s refusing to submit, and the policy should spell it out” that if employees refuse to be tested they will be fired, she said.

Policies should articulate disciplinary consequences for refusing to test and testing positive. “Be consistent. If you fire some people and not others you’ll end up with a discrimination claim,” she said.

Offsite testing is recommended because it’s more defensible in litigation, said Russo. “Testing offsite protects you as the employer more, because you’re sending your people out to a neutral third party who has trained professionals that know what they’re doing from the collection process to the laboratory analysis.”

Everyone has an opinion about the best specimen to use for drug testing. Kaplan and Russo recommend urine testing, which is still the most commonly used, widely accepted and approved by the federal government. Urine testing generally detects drug usage within the last 2-4 days.

“Many employers feel that the basic five panel— amphetamines, cocaine, marijuana, opiates and PCP—is not sufficient and want to increase the panel to include more exotic drugs and prescription drugs,” said Kaplan. “The pitfall of testing for prescription drugs is that employers will have to individually assess each positive result to see how the medication affects the individual and how it affects the performance of job duties,” he added. Using prescription drugs may indicate that the user has a disability, which raises ADA issues. The Equal Employment Opportunity Commission has gone after some employers for excluding employees who take prescription drugs without assessing their particular circumstances.

“Confidentiality is an issue for all tests,” said Kaplan. He advised treating drug test results like medical information. “Maintain results in a file separate from the employment file. Limit access to test results. Don’t send the results out on a common area fax machine or on an unrestricted computer.”

Testing for Marijuana

Marijuana use, including for medical reasons, is still illegal under federal law. In 2009, the Obama administration stated it would not prosecute medical marijuana users in states where it has been authorized, and in 2013 announced it would not challenge Colorado and Washington laws legalizing recreational marijuana. Twenty-three states plus Washington, D.C., allow medical marijuana, however, lawsuits brought by employees charging unfair dismissal for using medical marijuana have all been dismissed to date. It is notable that newer medical marijuana laws contain anti-discrimination language that relies on medical marijuana users being considered disabled. Four states (Alaska, Colorado, Oregon and Washington) and Washington, D.C., have passed recreational marijuana laws. “I’m not too concerned about these,” said Russo. “At least three of them say employers may prohibit marijuana use in the workplace if they choose.”

Employers in these states will have to devise policies for testing for marijuana, especially in states with anti-discrimination language, because employees who test positive may argue that the drug use was off-duty and legal.

One final thought: There are five states (Iowa-for alcohol only-Maine, Minnesota, Rhode Island and Vermont) which prohibit employers from terminating workers who test positive for illegal drug use for the first time. “Other than these states, the choice is yours, just be consistent,” said Russo. “If you choose among workers who gets fired and who gets referred to the [employee assistance program], you will be sure to be hit with a discrimination claim.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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