In the contemporary business landscape, it is crucial to uphold a secure and efficient workplace to achieve sustained success. Implementing employee drug testing initiatives is vital for preserving your organization’s reputation, adhering to safety regulations, and safeguarding the health and welfare of your team members. Nevertheless, if not administered correctly, these programs may also present potential risks and liability to the organization.
Here at National Drug Screening, we believe employers are at more risk than ever before with their drug testing programs. Several factors contribute to this:
- Substance abuse in America continues to increase
- Overall drug testing positivity rates have reached a 20 year high at 4.6% (Quest Diagnostics – Drug Testing Index 2023)
- Most corporate drug free workplace policies were written in the 90’s and need updating
- 38 states plus DC and 4 US Territories have passed “medical Marijuana” laws
- 24 states plus DC and 3 US Territories have passed “recreational Marijuana” laws
- Increased rates of marijuana positives in states with recreational marijuana (Quest Diagnostics – Drug Testing Index 2023)
- Many states are passing employee friendly laws for off duty use of marijuana
Creating and updating drug free workplace policies along with understanding marijuana laws in areas you operate in are the two most critical topics to for employers to consider in order to avoid liability and risk the employer’s drug testing program.
Drug Free Workplace Policies
There is no one size fits all and these policies must be updated as times change especially in this era of new marijuana laws and new specimen types and methodologies for drug testing. Below we will discuss marijuana laws and considerations we are seeing across the United Stated. Company leadership must make decisions regarding marijuana in the workplace and reflect these decisions in their policies.
A well-structured and compliant company drug testing policy is essential for maintaining workplace safety, productivity, legal adherence; along with an environment minimizing risks. The policy must outline key aspects of how an organization handles drug testing, ensuring clarity, fairness, and alignment with applicable laws and standards. Below is a breakdown of seven essential points to consider when developing or updating a company drug testing policy.
- Who, What, When, Where, Why, and How Testing Will Be Conducted
- Legal Compliance – review federal, state, municipal, and industry-specific laws,
- Distribution and Availability – is everyone aware of the policy
- Sound Internal Procedures must include employee education and supervisor training
- Comprehensive Job Descriptions particularly for safety-sensitive positions are critical
- Court Defensible – policy must be clear and provide for consistent application
- Updates – keep the policy up to date and provide these updates to HR, supervisors and employees
A well-designed and regularly updated company drug testing policy serves as a cornerstone for maintaining workplace safety and legal compliance. By covering all aspects from the “who, what, when, where, why, and how” of testing, ensuring legal compliance, and providing clear internal procedures, companies can protect themselves from legal risks while fostering a safer and more productive environment.
Marijuana Considerations in Keeping Your Drug Testing Risk Free
The changing landscape of state laws regarding marijuana and employee drug testing complicates the matter of risk in your drug testing program. Obtaining knowledge about the marijuana laws in the areas your company operates is critical to the success of your employee drug testing program. Implementing policy changes based on the marijuana laws will greatly reduce the employers risk in operating as a drug free workplace.
Here are five extremely important marijuana considerations:
- DOT regulated drug testing includes required marijuana testing and marijuana (THC) very much a prohibited substance for DOT covered safety sensitive employees
- Some states are offering protections for lawful medical marijuana patients, this may require an interactive process to determine if accommodation is possible BEFORE taking adverse employment action or denying employment
- Some states are offering protections for “off-duty” recreational use of marijuana
- Some states may prohibit marijuana testing except for safety sensitive employees. This is where the creation of comprehensive job descriptions becomes critical.
- California and Washington (pre-employment only for WA) will permit employer intervention solely if the test indicates the presence of psychoactive marijuana (THC) metabolites. While urine and hair testing do not detect these metabolites, oral fluid testing is capable of doing so. Other states may follow.
The positive aspect is that 20 state laws indicate that employers are not required to accommodate the use of marijuana or an employee being under its influence while at work. There are also 15 states where an employer is authorized to act if an employee is found to be using or under the influence of marijuana while at work.
Regarding the considerations for marijuana testing in the workplace a comprehensive state by state guide is available from National Drug Screening at https://www.nationaldrugscreening.com/marijuana-considerations-laws-by-state/
Conclusion
A drug testing program implemented by an employer can provide numerous advantages, such as enhancing workplace safety and ensuring adherence to regulatory standards. Nevertheless, if not meticulously planned and executed, these programs may also present considerable risks to employers, including potential legal disputes, harm to employee relations, and expensive errors. By recognizing and proactively mitigating these risks, employers can develop drug testing programs that are both efficient and legally compliant, thereby fostering a safer and more productive workplace.
