Staying Current: Looking back at an historic year for drug testing

By Bill Current, Current Consulting Group

Let’s look back on some of the key developments that made 2023 an historical year for the drug testing industry. Looking back at an historic year for drug testing.

DOT ORAL FLUID FINAL RULE

On May 2, 2023, and just in time for NDASA’s annual meeting, the U.S. Department of Transportation (DOT) announced a final rule for lab-based oral fluid testing. This new DOT rule represents the most significant
development in the drug testing industry since Congress passed the Omnibus Transportation Employee Testing Act in 1991. Though the effective date was June 1, 2023, DOT-covered employers may not begin using oral fluid testing until at least two laboratories have been certified by the federal government.

WASHINGTON’S NEW DRUG TESTING LAW

On May 9, SB 5123 passed, protecting job applicants in the state of Washington from discrimination based on their lawful and off-duty marijuana use. The effective date was January 1, 2024.

Under SB 5123, employers cannot discriminate against an applicant during the hiring process if the discrimination is based on:

• Use of cannabis off-the-job and away from the workplace.
• A required drug test indicating the presence of “nonpsychoactive cannabis metabolites” in the hair, blood, urine, or bodily fluid.

The key term here is “nonpsychoactive cannabis metabolites.” The only testing
methods currently available that detect parent THC rather than the nonpsychoactive metabolite are oral fluid and breath. Many industry experts believe these two testing methods will be viable options for employers
who wish to continue screening applicants in Washington for marijuana.

According to the statute, employers can:

• Base initial hiring decisions on “scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.”
• Maintain a drug- and alcohol-free workplace.
• Meet any “rights or obligations” required by federal law or regulation.
• Test with any permitted specimen, for all situations outside of pre-employment.
• Test applicants for a “spectrum” of controlled substances that includes cannabis, as long as the cannabis results cannot be provided to the employer, and the tests adhere to the entirety of the law.

SB 5123 contains many positions or occupations exempt from the new law’s restrictions on testing for THC.

MINNESOTA’S NEW RECREATIONAL MARIJUANA LAW

Minnesota became the 23rd state to legalize recreational marijuana use in May, making marijuana use legal for adults 21 and older.

HF 100 states it is not meant to limit an employer’s ability to discipline an employee for the use, possession, impairment, sale, or transfer of cannabis during work hours; while on work premises; while operating an employer’s vehicle, machinery, or or equipment; or if a failure to do so would violate federal regulations or state laws or cause the employer to lose a monetary or licensing-related benefit.

All situations where cannabis testing is permitted per HF 100 also must comply with the general mandatory drug and alcohol testing law in the state.

Under the new law, an employer may not:

• Refuse to hire an applicant because they engage in the use of lawful consumable products as long as use occurs off of work premises and during non-working hours.
• Discipline or discharge an employee because they engage in the use of lawful consumable products as long as said use occurs off of work premises and during non-working hours.
• Request or require an applicant to be tested for cannabis solely for the purpose of determining the presence/absence of cannabis as a condition of employment unless otherwise required.
• Refuse to hire an applicant solely because they submitted to an authorized cannabis test or drug and alcohol test and returned a cannabis-positive result, unless otherwise required.
• Require or request an applicant or employee to undergo cannabis testing on an arbitrary or capricious basis.

However, an employer may take action against an employee for the use, possession, impairment, sale, or transfer of cannabis while the individual is working; on the employer’s premises; or operating the employer’s vehicle, machinery, or equipment if:

• The individual does not possess clearness of intellect and control of self that they would otherwise have.
• A cannabis test returns a confirmed positive result.
• Conditions provided in the employer’s written work rules are met, provided that the rules are in a policy that meets the minimum information required by state law.
• Authorized or required under state or federal law/regulations, or if a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or regulation.

HF 100 also includes updated guidance for employers pertaining to medical cannabis. Medical cannabis patients required to undergo workplace drug testing as part of the state drug testing law may present their registry verification or Tribal medical cannabis program enrollment as part of their explanation for a positive test result Review the statutory language for more details.

OHIOANS VOTE TO LEGALIZE RECREATIONAL MARIJUANA

Issue 2 was approved by voters on Nov. 7, but in December, Republicans in the state senate proposed sweeping changes that may alter the new law significantly.

As originally passed, Issue 2 contains a lot of guidance for employers. For example, Issue 2 does not:

• Require employers to permit/accommodate the use, possession, or distribution of cannabis.
• Prohibit employers from taking adverse employment action because of an individual’s use, possession, or distribution of cannabis.
• Prohibit employers from establishing/enforcing drug testing policies, drug-free workplace policies, and/or zero-tolerance drug policies.
• Interfere with federal employment restrictions, including federal Department of Transportation (DOT) regulations.
• Permit individuals to commence a cause of action against an employer for taking adverse employment action against an individual with respect to hiring, tenure, terms, conditions, or privileges of employment related to that individual’s use of cannabis.
• Impact the authority of workplace compensation program administrators to grant rebates or discounts on premium rates to employers participating in a drug-free workplace program.

Additionally, individuals discharged because of their cannabis use are considered to have been discharged for just cause for the purpose of unemployment benefits eligibility if the individual’s use of cannabis was in violation of an employer drug or related cannabis policy.

QUEST DRUG TESTING INDEX

The Quest Drug Testing Index (DTI) is one of the most anticipated annual reports on drug testing. The 2023 report is based on drug test data from 2022 and revealed some alarming trends regarding post-accident and pre-employment positivity rates.

“Over the last five years, in general workforce, non-federally mandated, urine testing, overall post-accident positivity increased 22.6% (8.4% in 2018 versus 10.3% in 2022). Specifically, post-accident positivity as compared to pre-employment tests in urine specimens testing for marijuana and cocaine in the general U.S. workforce was higher by 58.7% and 230%, respectively.”

In the federally mandated market (safety-sensitive population), post-accident positive test results from urine tests increased year over year by 16.7% between 2021 and 2022 and over five years by 40%. At the same time, pre-employment positives just for marijuana increased 18.2% for this same group between 2021 and 2022, and 30% over five years.

Here again, marijuana use by workers appears to be driving the significant increase in post-accident positive results. In 2022, post-accident marijuana-positive urine drug tests in the general U.S. workforce were up 9%, compared to 2021, extending a steady increase in post-accident marijuana positivity over a 10-year period between 2012 to 2022.

Following a decline in marijuana-positive post-accident test results between 2002 and 2009, marijuana post-accident positives since have increased 204.2%.

CURRENT CONSULTING GROUP’S 25TH ANNUAL DRUG TESTING INDUSTRY SURVEY

After 25 years of conducting the annual drug testing industry survey, Current Consulting Group (CCG) continues to identify the hottest issues facing the industry.

This year’s survey, which was released at NDASA’s annual meeting, indicates two trends that likely will dominate our attention again in 2024: oral fluid testing and marijuana.

Oral Fluid Testing: While urine testing continues to be the most utilized drug testing method, oral fluid testing is growing in popularity according to CCG’s annual industry survey.

When providers were asked: “In the future, what drug testing specimen will be used the most?”, only 46% said urine (down from 50% last year), while 46% indicated it will be oral fluid (up slightly from 45%). About 7% said it will be hair, up from 4.2%.

Many providers admitted the endorsements from SAMHSA and DOT have played a role in their decision to offer oral fluid testing. Though we did not ask the same question this year, in the 2022 survey, nearly half of participants said federal government moves were motivating them to add oral fluid testing to their offerings, while only 4.8% said they still had no plan to offer oral fluid testing.

Marijuana: The legalization of marijuana continues to have an impact on employers’ drug testing policies. When providers were asked: “Have you had clients drop marijuana from their drug test panel in the last two years?”:

• 53% said yes, but not many.
• 20% said yes, too many.
• 10% said no, but they expect some to do so.
• 16% said no.

The top three reasons employers drop marijuana from their drug test panel include:

• 63% believe it makes it harder to hire new people.
• 42% want to avoid the risk of legal challenges from disgruntled applicants and employees
• 27% believe it is not legal to test for marijuana in their state(s).

Will this trend continue?

Not surprisingly, nearly 33% of providers said employers no longer will test for marijuana in five years, while 36% said employers still will test for marijuana, but there will be far fewer.
When asked if employers who drop marijuana from their drug test panel eventually will reinstate it, 50% said
“probably not.” Only 10% said “many if not all” will add marijuana back into their panel.

CONCLUSION

What can drug testing providers and employers expect in 2024?

• Maybe more states will pass bills like Washington’s SB 5123 (and California’s AB 2188), but we’ll also likely see some legal challenges on both sides of the issue.
  

• More interest in oral fluid testing, including rapid-result testing. This issue will heat up once at least two laboratories become SAMHSA-certified and DOT-covered employers start making the switch to oral fluid testing.
  
  
• Oral fluid and breath testing for marijuana, two testing methods that detect parent THC rather than the “non-psychoactive” metabolite of cannabis, will grow in popularity in states like California and Washington.
  

• More companies dropping marijuana from their drug test panel and, perhaps, a slow but eventually steady return to marijuana testing by companies that dropped it.
  
  
• More post-accident positive drug test results for marijuana. More pre-employment test results for marijuana. More employers demanding solutions from their drug testing providers.

The Current Consulting Group offers a comprehensive, regularly updated on-line database of state drug testing laws through an on-line subscription service available through NDASA. Visit CurrentCompliance.org and make sure to mention NDASA to receive a special discounted rate.