>>> By Andrew Current >>>
Which Drugs to Test for?
There are approximately 130 controlled substances included as Schedule I in the federal Controlled Substances Act of 1970. That’s over a hundred drugs in just one schedule. Multiply that for each schedule and you’ll get hundreds and hundreds of controlled substances. Knowing which ones are legal to test for and which ones aren’t can seem like a daunting task. But a quick look at the numbers will reveal a manageable track to ensuring compliance with state drug testing laws.
Federal Regulations in the Workplace
Approximately 33 states and municipalities in the United States have some sort of drug testing law. Often, these laws refer to the Substance Abuse and Mental Health Administration (SAMHSA) regulations. This can also be referred to as Department of Health and Human Services (DHHS) regulations. As well, Department of Transportation (DOT or 49 CFR Part 40) regulations require compliance with many DHHS or SAMHSA criteria, thus DOT regulations often imply SAMHSA regulations.
In addition to the network of intersecting federal government agencies described above, it is useful to understand the role of the National Institute on Drug Abuse (NIDA) and its contribution to federal drug testing regulations. NIDA’s mission statement is to “lead the Nation in bringing the power of science to bear on drug abuse and addiction.” Its focus is research and communications related to substance abuse and addiction. At one point in time, SAMHSA was under the direction of NIDA. So sometimes you will still come across references in state laws, regulations, and drug testing guides to NIDA regulations. This is yet another roundabout reference to SAMHSA regulations.
SAMHSA, DHHS, DOT, and NIDA are often cited by state drug testing statutes. Sometimes, these references require full compliance with federal regulations. Other times, only certain parts of the regulations are required. So, when examining the question of drug panels (what specific substances or class of substances an employer can test for) figuring out if SAMHSA, DHHS, DOT, or NIDA compliance is required can help answer a lot of policy questions.
The SAMHSA Panel… A Model Panel for Federal Agencies
Marijuana, cocaine, amphetamines, opiates, and phencyclidine. As we discuss federal drug testing panels, you may think you’re listening to a broken record as these five substances are listed over and over. However, this is intentional. Historically, as one agency updates its drug panel the others amend their panels to match. What is the SAMHSA panel? The DOT panel? The NIDA panel? The DHHS panel? All the same core substances: marijuana, cocaine, amphetamines, opiates, and phencyclidine. However, in recent years SAMHSA has begun tweaking its panel and other agencies, such as DOT, have followed suite (or are expected to do so in the coming months).
For some time, the SAMHSA regulations required a 5-drug panel that included marijuana, cocaine, amphetamines, opiates, and phencyclidine; and this has been referred to as the SAMHSA 5 (and often still is). In 2010, the SAMHSA 5-drug panel was expanded to specifically include MDMA, MDA, and MDEA (all types of amphetamines). Then, on January 23, 2017, the DHHS published new regulations that modified mandated federal drug testing programs yet again. This time adding MDA as an initial test analyte, removing MDEA, and replacing the term “opiates” with the term “opioids,” effectively opening up drug testing panels to a wider range of commonly abused pharmaceuticals.
State Laws that Require the SAMHSA Panel
Of those states, municipalities, and territories with drug testing laws, some are mandatory, while others are voluntary. That means that only under mandatory drug testing laws that refer to SAMHSA regulations are employers obligated to limit their drug testing to a SAMHSA panel. Surprisingly, both lists of states that make such references are relatively short.
Voluntary states that require the SAMHSA panel include:
However, Alaska only requires the SAMHSA panel as a minimum. This means employers are free to add to it.
Mandatory states that require the SAMHSA panel include:
That only adds up to five states in total that require a SAMHSA panel. Other states, such as Ohio and Montana, have similar panels that require employers to test for cocaine, marijuana, opiates, amphetamines, and phencyclidine – the original SAMHSA 5. But as SAMHSA and the DHHS have expanded their panel, states that explicitly listed out the original SAMHSA 5 are not automatically expanded to use the expanded SAMHSA panel.
What to Do in States that Don’t Require the SAMHSA Panel?
Such a short list of states requiring SAMHSA panels does not mean employers are free to use any panel they want in the other 28 states, municipalities and territories with drug testing laws. However, employers do have full discretion in the nearly 20 or so states and territories that have no drug testing law. Some state laws only tackle the question of testing circumstances, leaving what happens at the lab alone, thus having no immediate restrictions on drug panels. Some laws, however, regulate lab procedures heavily.
Take Oklahoma, a mandatory state, for example. Its law provides the following panel: amphetamines, cannabinoids, cocaine, phencyclidine, hallucinogens, methaqualone, opiates, barbiturates, benzodiazepines, synthetic narcotics, designer drugs, or a metabolite of any substance listed above. That’s both a very specific and very broad list. Most employers could include virtually any drug they want to test for in those 12 categories. If the lab tests for K2 and Spice, an employer can even add those to his or her policy since they fall under synthetic narcotics or designer drugs. Another example of a specific panel is Florida, a voluntary state, which requires employers to test for amphetamines, marijuana, cocaine, phencyclidine, methadone, methaqualone, opiates, barbiturates, benzodiazepines, propoxyphene, or their metabolites.
Above all, it is imperative that employers consult all applicable state laws before implementing a drug testing policy. As well, many drug panel requirements are found in definitions located in separate laws or administrative regulations for narcotics control, lab licensing, or workplace drug testing. Understanding SAMHSA regulations can be a genuine help to employers in states with wide-open drug testing laws or no laws at all, as it can be considered a safe standard to model one’s policy after.
By Andrew Current of the Current Consulting Group, LLC
Andrew Current, Compliance Director for Current Consulting Group, LLC, researches state and federal laws, manages Current Compliance, an on-line state laws database, and serves as the managing editor of the e-newsletter State Drug Testing Laws Monthly as well as other publications.