As we transitioned to 2020, there have been some very significant changes that have already gone into effect or will go into effect this year. These changes affect drug and alcohol testing services provided by 3rd party administrators (TPAs) and background screening companies plus they may dramatically affect employer’s programs depending on the state(s) they operate and whether they are federally regulated. In this issue of Inside Drug Testing, we will summarize the top 5 concerns for employers and background screening companies, including those acting as a TPA. These include FMCSA Clearinghouse, Oral Fluid Testing, Marijuana laws, Drug Free Workplace Policy, and Employer training programs.
FMCSA Testing Rates & Clearinghouse
On December 27, 2019, the Federal Motor Carrier Safety Administration (FMCSA) announced that the minimum annual percentage rate for random drug testing will increase from 25% of the average number of driver positions to 50% of the average number of driver positions. This change became effective January 1, 2020. The minimum annual percentage rate for random alcohol testing remains at 10%. This doubling of the required number of drug tests will lead to increased sales for drug testing providers as well as affecting costs for employers.
Another factor that will increase costs for employers regulated by the Federal Motor Carrier Safety Administration, is the implementation of the FMCSA clearinghouse, a database used to report violations of DOT regulations related to drug and alcohol testing. These employers are required to register with the Clearinghouse and purchase queries, currently at $1.25 each. They, or their designated TPA, will be required to run an annual query on each driver and report specified violations of the DOT regulations.
Medical Review Officers (MRO) are also now required to report positive drug test results and MRO determined refusals to the clearinghouse which will increase the costs of testing. Another issue that may arise is that some MROs will choose not to continue reviewing FMCSA DOT testing due to the reporting requirements. DOT qualified Substance Abuse Professionals (SAP) also have strict reporting requirements that may lead to increased costs and some SAPs may choose to no longer provide services for those that require reporting to the clearinghouse.
As with any new system, there were challenges with the clearinghouse website that has led to frustration among many employers and drivers. Trouble accessing the website, challenges with the required dual verification process, and problems navigating the set up process. The FMCSA is working diligently to resolve these issues and is providing regular updates and guidance on how to proceed and remain in compliance while the issues are being resolved. The website is https://clearinghouse.fmcsa.dot.gov/.
For both TPAs and employers, navigating the requirements of the new regulations can be a challenge. Fortunately, there are options to get hands on assistance in managing the program, running queries, and providing guidance. Companies like ClearingHouseServices.com provide membership based support services related to the FMCSA Clearinghouse. There are memberships for Employers, TPAs, SAPs, MROs, and Owner Operators. To discover how these services can help you increase your business and better serve your clients, visit https://clearinghouseservices.com/
On October 25, 2019, the U.S. Department of Health and Human Services (DHHS) published guidelines for use of oral fluid drug testing in federal workplace drug testing programs. The Mandatory Guidelines for Federal Workplace Drug Testing Programs Using Oral Fluid (OFMG) authorizes federal executive branch agencies to collect and test oral fluid specimens; it also establishes the standards and technical requirements for oral fluid collection devices and their use, including initial and confirmatory oral fluid drug test cut-off concentrations and methods, among other things. These Guidelines took effect on January 1, 2020.
There has been some confusion about the use of oral fluid for Department of Transportation or DOT testing though. While the Department of Transportation is required to follow the Mandatory Guidelines in developing drug testing programs for their regulated industries, they have not yet implemented oral fluid testing. It will likely be 12-18 months before these are approved for DOT drug testing.
This means that until DOT’s operating agencies implement regulations adopting the new Guidelines into their respective testing programs, oral fluid may not be used for DOT testing programs. To keep up to date on DOT changes, make sure to sign up for the ODAPC listserve and you will receive news and updates electronically regarding DOT Workplace Drug and Alcohol Testing. https://www.transportation.gov/odapc/ListServe_Notices .
What’s New with Marijuana?
The simple answer is that there are new things happening all the time these days. While laws change slowly at the Federal level, state laws, as well as court decisions about those laws may rapidly change from state to state and even at the city level. Here are a few examples that begin in 2020.
Nevada - A law prohibiting Pre-Employment marijuana tests took effect January 1, 2020. The law, however, does not apply to applicants who apply for positions as firefighters, emergency medical technicians, operators of motor vehicles who are required to submit to drug tests, or other positions that “in the determination of the employer, could adversely affect the safety of others.” This does not affect testing requirements for employees who fall under DOT regulations.
New York City - Law Prohibiting Pre-Employment Marijuana Tests becomes effective May 10, 2020. The New York City Human Rights Law will prohibit pre-employment marijuana drug tests but will not apply to applicants for certain types of jobs as detailed in the law. Exclusions include DOT regulated employees, police officers, certain types of construction jobs and other pre-defined safety sensitive positions. Note this law applies in New York City not the entire state.
There are other laws new for 2020 and prior to 2020 that contain language such as “employers cannot refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of the applicant’s or employee’s status as a medical marijuana card holder. Or, “an employer may not refuse to hire, discipline, discharge or otherwise penalize an applicant or employee solely on the basis of a positive drug test result for marijuana…”
While many states still allow for testing and adverse action of employees who test positive for marijuana, it is important to realize that you must not only comply with often confusing state laws but you must also have a clear drug free workplace or safety policy that spells out specifically how the company will handle given situations.
Drug Free Workplace Policy
The Drug free workplace policy is essential to any company that conducts drug and alcohol testing as it covers the what, when, where, who, and why. When the laws change or sometimes when court rulings are made, a change to the Drug Free Workplace policy must be made to remain in compliance with the law.
Companies regulated by the Federal Motor Carrier Safety Administration (FMCSA) must make changes to their policy to include the requirements of the FMCSA Clearinghouse Regulation. The FMCSA also doubled the annual drug testing rate from 25% to 50% meaning that if the exact percentage is stated in the policy, it would need to be updated. Additional employee training must be made available to educate drivers about the FMCSA Clearinghouse. There were some major changes in 2018 requiring a policy update that some companies still have not completed meaning they are out of compliance.
For all companies conducting nonDOT testing that are based in states with changing marijuana laws or that have had legal rulings about marijuana as it relates to employment testing, you should review your companies stance and policy to make sure you are in compliance with the applicable laws. Often, issues and lawsuits arise not just from the company’s policy but the lack of following the company policy or not using common sense in the application of the policy. For this reason, training is extremely important.
Remember that when changing or updating the policy to provide copies to the employees and have them sign and date a receipt of the updated policy. This will help eliminate some challenges down the road. Supervisors should not only sign off on receipt of the policy but be trained on the policy and any changes.
Training is key for company personnel. Training can help improve workplace safety and minimize liability for a company. Part of the supervisor training responsibilities should include identify signs and symptoms of impairment or drug and alcohol misuse on the job; this is known as reasonable suspicion drug testing. With very low unemployment rates and the expanding legalization of marijuana plus the continued increase in positivity rates for illegal and illicit drugs like heroin, Meth, cocaine, and fentanyl, the likelihood of having at least some employees who are using drugs is going up.
Reasonable suspicion testing is conducted when a supervisor(s) has evidence or reasonable cause to suspect an employee of drug use. Evidence must be based upon direct observation and must include specific observations about appearance, speech, behavior, or body odor, these must be contemporaneous as well. Recognizing an appropriately and objectively documenting a reasonable suspicion situation is an important aspect of a supervisor's responsibility.
Another type of training that's of increasing importance is for the Designated Employer Representative, also known as the DER. The DER Is the person responsible for overseeing and managing the drug testing program and ensuring that it is in compliance with applicable state and/or federal laws. The term DER is most often utilized when referencing the one overseeing a DOT regulated program. Understanding and complying with the Regulations is critical in maintaining compliance. Failure to maintain compliance can result in significant fines and can increase the danger to the traveling public as well as co-workers and the company.
You have already taken a first step by learning about some changes that may affect your company and clients. The next step is taking action to identify any of these issues that have not yet been addressed. Just remember that you do not have to do everything on your own. Continue to read and learn, sign up for the ODAPC listserve if you work with DOT regulated clients (required by regulations if you are a service agent), join an industry association, attend conferences, and reach out to service providers who are knowledgeable in the industry.
In the upcoming issues, we will focus on specific issues to help you better understand, manage, and implement your drug and alcohol testing programs. This may include best practices, trends, systems, new technology, and more. As someone in the industry, we value your opinion and want to deliver content that will benefit you. Have an idea for “Inside Drug Testing” Topic? Submit your ideas here: https://form.jotform.com/200195874338158
About Tom Fulmer
Tom Fulmer, CPCT, is the Vice President of Business Development for National Drug Screening, a nationwide leader in employer drug testing and top provider of drug testing, training, & TPA/Consortium software. Tom writes articles for National publications and presents at conferences. In 2017 and 2018, he won HR.com “Best Customer Service Leadership Training Program” awards and in 2018, he also won a top 10 award for “Best Sales Leadership Training Program”. Tom also conducts training for collectors, employers, and sales and customer service teams.
About National Drug Screening
National Drug Screening (NDS) assists Background screening companies and employers in reducing liability, improving safety, and attracting and retaining better employees by providing drug testing services, supervisor training, Drug free workplace policy development, and other employer resources. NDS provides MRO services, TPA management software, and training to assist other drug testing service providers automate and streamline their processes and increase profitability and service. Top 50 Florida Companies to Watch Award winner 2019.