As the COVID-19 pandemic continues, employers are faced with significant challenges when trying to maintain safe working conditions and administer drug-free workplace initiatives. In some states, cannabis and alcohol sales have hit record highs, as people are trying to find ways to alleviate ongoing stress and anxiety.
According to the Centers for Disease Control and Prevention, as of June 2020, 13% of U.S. adults reported starting or increasing substance use as a way of coping with stress or emotions related to COVID-19. Additionally, the American Medical Association issued a brief in March 2021, citing that more than 40 states have reported increases in opioid-related mortality.
Experts agree that drug use is increasing, but how do you navigate all the concerns to maintain a drug-free workplace in today’s complex working environment?
Marijuana laws are continually evolving –currently 35 states have now approved marijuana for medical use and 15 of those states and the District of Columbia have also approved recreational use. For additional information, please check out our blog: Marijuana Wins Big on Election Day – What This Means for Employers.
At the federal level, marijuana is still illegal. The Controlled Substances Act lists the drug as a Schedule I controlled substance making it illegal to prescribe, possess, or use. Some employers think that the Americans with Disabilities Act requires them to make reasonable accommodations for employees with medical marijuana cards, but this is not the case.
Only 14 of the 35 states that have a medical marijuana statute require the employer to consider accommodations, meaning if an employer has a compelling business reason (based on articulable workplace safety) not to accommodate a medical marijuana user, they have the right to deny employment. From a federal perspective, possessing and using marijuana is still a crime; therefore, no federally regulated program, such as the U.S. Department Of Transportation (DOT), can even consider accommodations for regulated position regardless of state law.
While state laws may vary, no law obligates employers to accept marijuana use or impairment on the job. This is especially notable for positions when impairment would interfere with the employee’s ability to safely carry out his/her job duties without posing a risk to themselves or others.
As the economy returns to normal, millions of people will be scouring the market for jobs and an increased percentage of those individuals will be substance abusers. Testing will be more important than ever under these circumstances; however, many applicants or former employees may be reluctant to undergo drug screening due to health concerns associated with COVID-19.
Health clinics and drug testing facilities are well-equipped to manage the risks associated with COVID-19 and have followed the CDC guidelines to ensure a safe experience. Additionally, all facilities have beefed up their sanitation procedures, cleaning hard surfaces, doorknobs, chairs, etc.
Employers not regulated by DOT may also choose alternative methods of drug testing, such as oral-fluid testing, where employees can swab their own mouths and the observer can remain at a safe distance. Oral fluid testing is a great specimen to help detect recent drug use. Since the collection is observed, the test cannot be easily subverted which gives the employer a real look at drug use activity that can be detrimental to a safe work environment.
While oral fluid has a slightly shorter window of detection than urine, based on recent Quest Diagnostic Drug Testing Index data, it has a higher positivity for almost all drugs and more than twice the positivity for marijuana. If you have a large number of former employees returning to work, oral fluid testing can be easily conducted at your place of employment.
Employers should make sure their drug-free workplace policies and procedures are updated to handle circumstances where an employee refuses a drug test due to a health concern – such as COVID-19. The policy should clearly state that the employer has the right to conduct random drug testing at any point that the employer chooses. Habitual drug users will use any excuse they can to get out of taking a drug test and COVID excuses are running rampant. A policy update gives you the right to test employees at your discretion once the crisis is passed.
Impact for U.S. DOT-Regulated Employers
No matter the Department of Transportation (DOT) mode, the requirement for drug testing during the pandemic never really changed. All DOT-regulated employers had to continue to test their prospective employees with a pre-employment test before either employment or performance of safety sensitive duties. Further their current employees were always subject to random testing and testing for cause events (post-accident and reasonable suspicion).
The number one reason that employers conduct drug testing is to provide a safe working environment for their employees, customers and vendors. While drug testing may be more challenging during the pandemic, the need for drug testing has never been more important. Drug testing serves as a deterrent for existing employees and is vital for safety-sensitive positions.
- For those employers incorporating a work-from-home model, they should tell their remote workers that their drug screening policies remain in effect during work from home periods.
- Employees who were put on leave for a month or more and brought back to work should be treated like a new hire. The reinstatement process should include the usual pre-employment background checks and onboarding requirements including drug testing.
- Some employers may want to consider alternative testing methods such as oral fluid drug testing. The collection process is extremely simple and can be administered by a trained professional or employee and can be conducted on your worksite. Oral fluid testing’s window of detect begins almost immediately after drug ingestion, which makes it an excellent indicator of recent use and particularly useful for post-accident and reasonable suspicion testing.
Whatever drug and alcohol policy a company employs, it should be followed uniformly and consistently. As a best practice, employers should have a good understanding of all drug testing regulations and their drug testing policies should be vetted by their risk management or legal departments. This will help ensure that their processes and procedures align with applicable local, state and federal testing guidelines. Additionally, it may help protect your company – especially if operating in multiple states with varying testing guidelines.
For additional information, register for our upcoming webinar on Thursday, April 22: Marijuana and COVID Concerns in the Workplace.