- Approximately 15 million employees are struggling with some sort of substance abuse issue (National Safety Council).
- Workers with substance use disorders miss nearly 50% more work days than their peers (National Safety Council)
- The rate of workforce drug positivity hit a fourteen-year high in 2018 (Quest Diagnostics April 2019).
- Both heroin and cocaine positivity in the federally mandated, safety-sensitive workforce showed large declines between 2017 and 2018 (Quest Diagnostics April 2019).
- Data shows clear gains and losses, but those aren’t the only variables. Employers continue to contend with a tight labor market coupled with overlapping, contradictory and evolving laws. How can you develop a clear drug-testing policy that takes everything into consideration?
A moving target
Start by researching newly passed legislation, clarified positions and court issued rulings in your state. They could have far-reaching ramifications. For instance:
- Oklahoma passed a medical marijuana statute that prohibits employers from taking action against applicants or employees solely based on their status as a medical marijuana license holder or due to a positive drug test result
- Federal judge in Connecticut issued a ruling in favor of a medical marijuana user. Failure to hire her constituted employment discrimination
- Congress passed the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act (SUPPORT Act) to address the opioid epidemic but leaves unanswered questions about adding fentanyl to federal drug-testing panels and guidelines for hair testing.
- Occupational Safety and Health Administration (OSHA) clarified its support for post-accident drug testing to promote workplace safety and health. An anti-retaliation provision prohibits employers from using or threatening to use drug tests to discourage employees from reporting on-the-job injuries and illnesses.
These leave lots of room for interpretation. Are you legally required to accommodate lawful marijuana use under state law or does usage violate federal laws? With new precedents being established, consult legal counsel regarding the defensibility of your drug policy.
Well-informed policies and people
Liability concerns are always a factor when developing company drug policies but frame them in a way that highlights your concern for providing a safe, respectful work environment. Employees may not realize the length of time drugs can impair cognitive and physiological functions, so start with educating them on the effects and the potential impact on workplace safety and performance.
Importance of clarity
Beyond employee handbooks, upfront transparency in recruiting and onboarding materials can help circumvent disciplinary action if rules are inadvertently violated. Carefully craft your policies and procedures along with penalties for a failed drug test. Avoid ambiguous phrases like “illegal drugs” and instead use explicit terms. For example: Use of marijuana, cannabis and any other derivation of the drug are strictly prohibited, whether recreationally or on the job. Any drug testing should be uniformly administered to prevent discrimination claims.
The new don’t ask, don’t tell
There’s a lot of media attention around the new interpretation of don’t ask, don’t tell as it relates to marijuana use. After evaluating and determining safety-sensitive jobs, some employers are eliminating marijuana testing for jobs that don’t pose a safety risk. This trend is gaining traction in industries having a hard time filling vacant positions. This decision should be carefully weighed especially for businesses that contract with the government or are in regulated industries (i.e. air travel, train operators, machinists, etc.). Businesses need to find the right balance: maintaining a drug-free workplace and filing job vacancies.
Whether you’re a multi-state employer, a business with remote workers or a local business, we can help you navigate the changing drug laws and offer drug testing policy recommendations tailored to your industry. This is one of the many outsourced HR services we provide to leaders who want to remain focused on growing their business. MidwestHR is a leading Chicago PEO in Illinois for over 20 years (certified professional employer organization) and we help clients with employment related functions like HR, employee benefit plans, retirement packages, payroll services and more. Unlike other PEOs, we tailor our services to your needs. With us, you will never get stuck in a “package” where you are paying for services you don’t need. Give us a call at 630-836-3000 to learn more about how we can help.
