Employees or job applicants for positions like bus drivers, airline pilots, railroad workers, taxi drivers, and truck drivers that are administered by the Department of Transportation have to comply with federal drug testing laws. They must comply with national legislation, which requires applicants to take and qualify for pre-employment urine drug testing. If an individual in one of those positions is ever in an accident at work, they’ll also be asked to take a post-accident drug test.
Federal Drug Testing Laws
The Department of Defense (DOD) made drug testing laws for contractors employed in positions liable for national security, Drug-Free Workplace, 42 Code of Federal Regulations (CFR) 223.5. To comply with the principles, every DOD contractor with some type of safety clearance or access to classified information must include a drug-free workplace policy, which includes:
- An employee assistance plan (EAP) that associates with local resources like a drug rehab center
- A stipulation that a worker can self-refer and that managers can also refer to drug abuse treatment
- Training for managers to help them know how to find and respond to illegal drug use
- A supervised and formal employee drug testing policy
- DOD laws also want contractors to affirm that drug testing procedures comply with applicable state laws and ensure that all labor unions have agreed to regulations.
With a few exceptions (e.g., firms given federal contracts), private companies are not obligated to test job applicants who make it into the hiring phase. However, many do because they get a discount on their Workers’ Compensation Insurance.
The “Just Say No” Era
Most of today’s drug-testing plan dates back to the Reagan government when many companies enforced “drug-free workplace” policies under the USA government’s Drug-Free Workplace Act of 1988. The act basically says that any company that gets federal grants or contracts has to be a drug-free workplace or lose its federal funding. Pre-employment testing is an integral part of the policy.
There is no doubt that alcohol and drug use among specific professions can be a risky proposition. It can influence judgment and concentration and might place businesses at risk for legal action.
The National Council on Alcoholism and Drug Dependence quotes that Employee use of alcohol and drugs has led to annual losses of $81 billion. According to Executive Order 12564, federal workers involved in law enforcement, national security, protecting property and life, and public health are subjected to mandatory drug testing.
Naturally, state laws vary when it comes to conducting a test for drugs or alcohol at work or as a pre-employment screening (that is why we created our easy-reference table).
Types of Drug Tests
Drug testing is typically conducted before tendering an offer of employment. A failed drug test could lead to the job offer being withdrawn. Pre-employment drug evaluations typically scan for six elements:
- Amphetamines (crank, speed, meth)
- THC (marijuana, hash)
- Opiates (codeine, morphine, heroin)
- Cocaine (crack)
- PCP (angel dust)
Pre-employment Urine Drug Tests and the Constitution
An employer’s test typically does not violate an applicant’s rights, but how the test was completed (or how its effects are used) can at times be a bit of a grey area. The U.S. Supreme Court has ordered that wholesale drug tests without a particular motivation for suspicion are illegal.
They also ruled that an applicant’s results or employee testing positive can’t be utilized in future criminal cases without the individual’s consent. And a test could be challenged on constitutional grounds if the outcomes are revealed or when testing is excessive or inappropriate. Therefore, it’s easy to see why many companies are abandoning applicant drug testing entirely.
By 2020, workplace drug testing has become a hot topic. It will just get hotter as we proceed into 2021, particularly with more laws to legalize the use of marijuana and other drugs. We’ve observed an increase in positive effects in the private sector, especially because of the legalization of marijuana in several countries. Greater anxiety from the Covid-19 outbreak is causing more use of illegal drugs and abuse of alcohol.
The recent Federal government figures from 2019 revealed that among individuals aged 12 or older, the percentage who used illegal drugs in the past year increased from 17.8 percent (roughly 47.7 million people) in 2015 to 20.8% (roughly 57.2 million individuals ).
Larger increases are anticipated for 2020 because of the pandemic. A trend study in October of 2020 by Quest Diagnostics suggests that abuse of fentanyl, heroin, and nonprescribed opioids are on the increase, potentially as a result of COVID–19 pandemic’s impact on health care access and support for people most at-risk for substance use disorder.
Currently, there are no federal laws that support drug testing in private sector workplaces. Department of Transportation (DOT) regulated companies need to have alcohol & drug testing. Additionally, the Drug-Free Workplace Act impose conditions on federal contractors and those receiving federal grants. To increase the confusion, most individual states have passed their own laws on drug testing, which sometimes conflict with federal laws.
As Americans become more dependent on legalizing marijuana and other drugs, those running workplace drug testing will have to adapt to keep up, maintain compliance, and protect their workers, customers, and business, including updating policies, manager training, and providing employee education and tools.
So Why Do We Want To Do Drug Testing?
1. Workplace Safety
Whether an employee is running machinery at a construction plant, operating a forklift, or stocking shelves in a grocery store, being under the influence of alcohol or drugs endangers the worker and those around them. By conducting drug testing, companies are fostering a safe work environment for their workers and for themselves.
Workplace drug testing makes the stakes of alcohol or drug use misuse even higher. Thus, employees won’t be as likely to use drugs if they know it could threaten their employment. A random testing program is an integral element in making drug testing really powerful. If the employee knows they might be analyzed at any time, they’ll be less likely to do drugs. As per the Office of Health and Safety Services (OHS), continuing employee drug testing enhances the number of workers who test positive.
Workers who are injured on the job or fired due to drug-related incidents won’t qualify for compensation and will be less likely to file suit against their company. By testing employees for drugs, companies help protect their business from liability, possibly lower workers comp costs and even premiums (in some states). They might be saving money in the future from lost earnings and turnover.
A Couple of Myths of Drug Testing that keeping Firms from Implementing A Drug Testing Program:
Myth: Drug testing costs too much. There are many different drug testing options available, and they can cost anywhere from $5 to hundreds of dollars each test. Yet, the scope for a laboratory standard 5 or 10-panel urine drug test is usually around $30-$60. For smaller companies, this can look like a lot, and for a company with several employees, the expense of drug testing can add up.
Truth: The direct expenses are much easier to measure, but the additional costs of not having a drug and alcohol testing program can be and frequently are dramatically higher because of lost productivity, higher insurance costs, turnover, liability exposure, and inner conflict.
Myth: Drug tests are an invasion of workers’ privacy. Some people believe that so long as workers aren’t coming to work under the influence, many argue that companies shouldn’t care what an employee does on their own time. Furthermore, some companies make someone observe the worker during the drug test to ensure no tampering occurred.
Truth: Those who misuse drugs do affect the office even if not directly under the influence. This can vary by the kind of drug and the person but can include paranoid behavior, mood swings or aggression, theft to support their addiction, and many more. They’re also statistically more likely to miss work, be productive, and take more sick days.
Addictive drugs are merely that “addictive”, and they’ve life-altering consequences at work and at home. Also, direct monitoring, which may be embarrassing for a urine drug screen, is typically done only after a man has been caught cheating on a drug test or there’s evidence that cheating occurred. Other tests like hair, oral fluid, and breath tests don’t create an embarrassing atmosphere for testing.
3. Debatable Accuracy
Myth: The impact of drug testing is questionable. Drug tests also Can’t differentiate between one-time and habitual usage, making results potentially unfair.
Truth: Drug use is drug use. Either you do it, or you don’t, one-time use is an issue; habitual use is a much larger problem. Drug testing in 2020 is exceptionally precise, and there are various methods to ensure the validity of the testing being done. Additionally, there are different detection time frames for various tests. For example, a normal hair test can look up to 90 days of medication use, a urine test 5-8 days, and an oral test might only be a day or two. The time it takes to appear differs in each too. That is why having the perfect testing setup is so essential.
With all the modifications and proposed changes to laws and rules regarding drug testing, it will be essential to move into 2021 to ensure your drug testing policy, processes, and training are updated and meet best practices. Additionally, when companies institute a drug testing policy, drug users and abusers will probably not apply as they know there’s a drug test.
This means that firms that don’t have a drug testing program are at a higher risk of getting applicants who may be drug users, thus revealing them to greater accountability in addition to safety and productivity concerns.
Now’s the time to get your drug-testing program in place. It will not be as expensive to perform it before the problems arise. There are a few extra incentives in some states, like reduced insurance costs and workers compensation allowances.
National Drug Screening (NDS) may not only help with setting up pre-employment, reasonable suspicion testing, post-accident testing, and random testing, but NDS may also help out with implementing a workplace policy, reconsidering your present policy, DOT Compliance, and supervisor and DER (Designated Employee Representative) training.