Workplace drug testing is an issue that continues to cause concern and debate in many industries. There is a clear need to ensure that all workers operate in a safe, productive manner. A workplace free from intoxication through drugs or alcohol. Employers have the right to test those putting others at risk.
But, what about a random screen and pre-employment testing for marijuana and prescription painkillers? Recent developments with drug laws and testing options mean it is time for re-evaluation in some areas.
There are two critical areas of debate right now: marijuana and opioids. Both items have led to pressure on regulators and employers with different outcomes.
At one end of the scale, we have the marijuana users that may have a more relaxed enforcement with workplace testing. At the other, there are people on prescription medication that could face difficulties with employment. Then there are the other gray areas in between.
Drug testing procedures need to change to help those dealing with legal marijuana and opioids.
Some employees are optimistic about the current situation with drug testing in the workplace. Ongoing legalization of marijuana across the US means a need for a change in policy across many states and industry. At least that is what people would suspect.
Meanwhile, other employers are looking to adapt current drug testing policy and invoke new clauses. If workers thought that they were going to be in for an easy ride in 2018, they might have been mistaken.
There is still a strong desire to crack down on drugs within the workplace. Major companies and government agencies want the US workforce to be as clean as possible. At the moment, it is anything but. Out of 10 million drug tests in the US workforce, 4.2% tested positive for a second year. This is the highest number since 2004, at 4.5%.
Changes in drug laws may be to blame, or it could come down to the sophistication of the panels. Employers may be able to detect more positive results, which influences these numbers. The drugs responsible for this high number are most commonly cocaine, marijuana, and methamphetamine.
Legalizing Marijuana And Workplace Drug Testing
Recent years have seen a rapid increase in the laws passed to decriminalize marijuana in certain situations. Some States have legalized medicinal marijuana in certain forms. Others have gone a step further with new measures on recreational use.
One would think employers would follow similar guidelines with their company drug policies for employee testing. It is too much to expect most companies to do away with marijuana drug panels altogether. There is still a risk if employees come to the work site high or intoxicated. If caught on the job high or intoxicated that should allow for post-incident testing and some other on-site tests in the right circumstances.
Yet, there are also plenty of companies that use pre-employment drug testing as a way of determining who they hire. Applicants in states with legalized recreational marijuana can feel demonized by this sort of testing.
Source: PBS NewsHour
Pros And Cons To Continued Marijuana Drug Testing
On the one hand, there are those that use marijuana and feel that companies need to modernize their approach. If state law allows for the medicinal or recreational use of marijuana, employers need to respect an employees right to take it. Campaigners that fought to end stigma against the use of marijuana still face the same attitudes at work.
Some employees would compare the issue to that of alcohol. This is a legal substance that is dangerous in the wrong situation, but many employees still come to work hungover with no repercussions.
On the other side of the debate, there are those worried that increased legalization means increased use. Some employers fear that employees may use marijuana over the weekend, forgetting that it remains in the system. It could be there long enough to impair them the following Monday. There are some statistics that back up these fears.
Nevada and Massachusetts are two of the states to legalize recreational marijuana use since 2016. They are also the states with the largest increases in positive test results – 43% up in Nevada and 14% in Massachusetts. This correlation suggests that perhaps there is more of a crossover between work and home life than expected.
Employees Are Caught In The Middle
There are some companies in these areas that have done away with testing for marijuana in this capacity. They want to make a clear distinction between work and home life. Some believe that they shouldn’t punish an employee for a legal choice made outside office hours. That is as long as it doesn’t affect performance in any way.
Then there are the companies that choose to stand by their drug testing policies, despite recent changes in marijuana laws. One such example comes from Vermont. Act 86 of Vermont’s law came into effect on July 1st. This new legalization allows those 21 or older to possess up to an ounce of marijuana. They may also cultivate two mature marijuana plants and four immature ones.
There are currently no plans to change the law on drug testing. Current law states that these drug tests are only permitted in cases when they suspect on-site intoxication. The company must also offer rehabilitation help. They also can only test those that have already received a conditional offer of employment. This should mean that most users only face repercussions in extreme circumstances.
Each State Had Different Laws Complicating Drug Testing Rules
There is also some uncertainty in California. Here employers can carry out screenings for illegal drugs on applicants. The concern for those using recreational marijuana is the classification of illegal substances. Marijuana use is now permitted under California state law, but not under federal law.
There are also some questions about the rights of users of medicinal marijuana. It seems that California workplace law is still trying to catch up with state law. Some feel that they need to follow the example of Massachusetts. Here employers can no longer discriminate against any medical marijuana cardholders.
This state vs federal issue is one that the government needs to address soon. State laws have helped marijuana users earn the right to recreational and medicinal use. Yet, they are still criminals in the eyes of federal law. Recently, President Trump released a statement about “probably” supporting plans to make this a state issue. It, therefore, seems like we won’t see this resolved in the near future.
The Fight Against Opioids and Painkillers Abuse
Workplace drug testing panels can vary depending on the needs of the employer. Some are more basic than others, but many cover a category called opiates/opioids. This covers a series of drugs from heroin and methadone to some high-strength painkillers.
As with panels for marijuana and amphetamines, testers determine levels of specific substances. It is then up to the employer what they do with that information. Ongoing developments in drug screening methods mean it is now possible to test for even more substance.
One agency taking advantage of that fact is the Department of Transportation. The Department of Transportation now wants to test for more versions of opioids to crack down on users.
First of all, it is important to note the change in name from opiates to opioids. This is apparent in this new DOT approach and is likely to appear in new drug testing laws. This isn’t the case for all drug testing situations right now. But, it is possible that this could continue if their idea rolls out with other government bodies or major companies.
There is a new 5-panel test from this government department that looks at 14 drugs. The panel has new semi-synthetic opioids available for detection. They are hydrocodone, oxycodone, hydromorphone, and oxymorphone. On their own, those names might not mean too much to the average employee.
Yet, this could have a significant impact on professional drivers and all employees of DOT. There are more common names for prescription pain medication that contains some of these substances. They include oxycontin, Percodan, and Vicodin. So, there are sure to be many employees in major companies, perhaps with chronic pain, that fail their drugs tests.
So what happens if a DOT employee tests positive for one of these substances?
Some employees may assume that there is little to worry about. They have a legal prescription or medication that just happens to contain substances on these panels. However, there could be major implications.
In the case of the DOT, physicians are to contact employers about the possibility of changing a medication. This means adjusting a current health care plan to one that doesn’t leave an employee medically unqualified. This could mean a major readjustment or employees. In the long-run, there could be some benefits here. Opioid dependency is a dangerous condition afflicting thousands across the US. This could help users move onto a safer option.
But, there are short-term consequences to changing prescriptions. Also, employers are essentially meddling in the personal lives of their workers.
This all fits in with a nationwide drive to clamp down on abuse of prescription painkillers.
The war on drugs in America is heavily leaning into the war on opioids right now. The healthcare industry is stuck in a vicious cycle of prescriptions and dependency. There are countless patients on prescriptions including these dangerous opiate substances. Many find themselves hooked on the drugs as they struggle to deal with chronic pain.
As many as 14,500 died from these drugs in 2016, and many more deaths are likely this year if the situation doesn’t change. The extra problem is that doctors push these painkillers rather than safer alternatives.
This June, the seriousness of the opioid crisis became clear in one of the US’s biggest healthcare fraud cases. There was an investigation into over $2 billion worth of alleged fraud by a medical professional. This included 162 defendants made up of doctors, pharmacists, and nurses. A large proportion focused on illegitimate opioid prescriptions. These defendants faced charges for dispensing opioids across 30 state Medicaid programs. There was $106 million worth of fraudulent claims for substance abuse treatment in Florida alone. Part of that came from a vast scheme of fraudulent urine testing.
Company Drug Testing Methods
Employers want to ensure that they use the best methods possible for valid results. The argument over the best practice is ongoing. Some companies prefer to stick to urine testing as a means of determining a range of substances within the body. In fact, this new method and semi-synthetic opioid panel from the DOT is only used via urine tests. The agency doesn’t want to use hair, saliva or blood samples. This is a questionable choice when urine samples are still open to tampering. The case above with widespread fraud places further question marks over the practice.
Different companies will have their own preferred method for handling drug tests. Again, it all comes back to that idea of different rules for different states, and different rules for different companies.
The important thing is that all employees are aware of the rules, expectations, and rights when it comes to workplace drug testing. If random screening with multiple drug panels is on the table at a company, employers need to consider their marijuana use. If pre-employment screening of opioids strengthens, applicants need to open about their medication.
Now you know how things stand in the middle of 2018. By 2019, the landscape may have altered.
We are in an interesting time for those dealing with workplace drug testing. The country is now in a transition period for those that voted for legalized marijuana, and now need employment law to catch up. Times are changing especially in the fight against opioid abuse in the workforce.
There is a good chance that companies will continue to weaken their approach to marijuana and strengthen the testing for opioids. The methods, panels, and laws will continue to evolve, but time will tell if it actually makes a difference to that figure of 4.2% of the workforce testing positive.