By Bill Current, founder Current Consulting Group
Why should employers update their drug testing policy regularly? There are many reasons, but here are 10 that providers should have knowledge of so they can better advise their clients on why and how to update their drug testing policy.
1. Increasing drug abuse — Some reports claim that substance use has leveled off, but the reality is that marijuana and fentanyl use is fueling increases in some sectors of society and both drugs pose a threat to the safety and wellness of workers.
2. New drugs of abuse — We hear a lot about marijuana and fentanyl, and rightly so, but there are some scary emerging drug trends including designer drugs and new psychoactive substances that are becoming more popular and worth monitoring. Check out the National Drug Early Warning System to stay on top of new drug use developments.
3. Drug use on the way to work — Some reports show that drug users, especially marijuana users, admit to getting high during their commute to work. That means they’re starting their shifts under the influence, which is never a good thing, particularly in safety-sensitive situations.
4. Drug use while on the job — There are also reports that indicate individuals are getting high while on the job. That’s not good news if you employ people who drive company vehicles or work remotely.
5. Post-accident positivity trends — More drug use before and during work shifts means more drug-related workplace accidents. This trend is manifested in the increase in post-accident positive test results.
6. Changing state laws — Last year there were nearly 600 bills considered at the state level that, if enacted, would have had a direct impact on workplace drug testing. As it turns out, several new laws actually were passed in addition to existing laws that were amended. All of these changes necessitate policy updates for employers with operations in those states.
7. Marijuana legalization—Most states have already legalized marijuana for either medical or recreational use or both. What we are seeing a lot of are proposed amendments to these laws that increase protections for marijuana-using employees and job applicants and place restrictions on what employers can do when someone tests positive for marijuana.
8. New testing methods — At the top of the list of new and emerging testing methods is oral fluid, but there are others in the works. Before you can implement a different testing methodology, you must update your drug testing policy to ensure complete compliance with all applicable state laws.
9. DOT and oral fluid testing — In May of 2023, DOT issued its final rule for lab-based oral fluid testing. And while there are still some conditions that must be met before covered employers can start using oral fluid testing, it’s on its way. The federal government predicted in 2019 that as much as 30% of DOT-regulated employers will either switch to or add oral fluid testing, which will require a complete overhaul of those companies’ policies.
10. Changing company priorities — Why a company conducts drug testing determines how it will test, who is subject to testing, and when testing can occur. As company priorities shift drug testing policies usually need to be updated.
When did you last update your policy?
In the Current Consulting Group’s 2024 Employer Drug Testing Survey, when asked “When was the last time you updated your drug testing policy?”, 34.6% indicated it had been more than a year with another 2.5% saying they’ve never updated their policy. When asked “What are the biggest challenges to performing drug tests?”, 29.3% said it was keeping their policy up to date.
In the same way an up-to-date drug testing policy that accurately reflects all applicable state laws and/or federal regulations is the key to a successful drug-free workplace program, an out-of-date policy, one that does not reflect current legal requirements, is an invitation to trouble in the form of an ineffective program and possible legal challenges from disgruntled employees and job applicants.
At a minimum, a drug testing policy should be updated annually. In reality, with the fast-changing legal landscape prompted by state marijuana laws, which often can have a direct impact on drug-free workplace programs, a company’s drug testing policy should be examined quarterly and updated in real time as laws change and new laws are enacted.
One size does not fit all
In a previous edition of The Voice, I wrote about why drug testing providers should offer policy review and development services:
“Yet, despite its importance, a drug testing policy is sometimes treated as an afterthought by both employers and drug testing providers. But providers do a great disservice to their clients by not emphasizing the critical importance of a well thought out policy that reflects a client’s drug testing objectives and covers all applicable state laws and federal regulations. Too many providers simply give their clients a one-size-fits-all model policy or policy template that makes no mention of applicable state laws and requires little more than inserting the company’s name and address at the top.”
Here’s the problem with a “one-size-fits-all” model policy—it’s not worth the paper it’s written on or the computer screen it shows up on via an email. Why?
1. It will be out of date within a few months if it doesn’t already start out that way.
2. Employers are likely to show little to no attention to it because it was probably free.
3. Employers are likely to show little to no attention to it because it’s not customized to the specific circumstances of that company.
4. It doesn’t take into consideration applicable state laws and regulations.
5. If it’s a DOT policy, it may not be specific to the right DOT agency or reflect the latest changes to Part 40.
6. It probably doesn’t cover state workers’ compensation regulations that often contain specific drug testing requirements for employers who wish to move to deny benefits when someone tests positive following an accident.
7. They provide employers with little to no legal defensibility when someone uses respondeat superior or negligent hiring laws to hold employers accountable for their employees’ reckless and bad behavior.
But for providers, the number one reason why “one-size-fits-all” model policies don’t work is because they don’t reflect well on you, the provider. When such policies fall apart under close scrutiny, the employer is likely to lose faith in the provider, which means a damaged business relationship and probably a lost client.
Conclusion
I concluded the previous article I wrote for The Voice with this:
“Years ago, the federal government did a study on what makes an effective drug testing program. I cannot find the study to reference it here, but if you’ll trust my memory just this one time, the conclusion of the study was that a comprehensive program that includes a written policy, supervisor training, and an employee assistance program will more likely produce the desired results from drug testing than a program that relies only on drug testing.”
An up-to-date policy that reflects all applicable state laws and federal regulations makes a drug testing program better. It’s the difference between being able to say you conduct drug testing and being able to say you maintain a safe and productive workplace that is virtually free of drug abuse issues. And that’s why we conduct drug testing.