Category Archives: drug testing

Steady Rise in Workers’ Drug Use

173779091--cannabisThe percentage of workers in the United States testing positive for illicit drug use has reached a 10-year high, according to Quest Diagnostics’ latest Drug Testing Index, released today at the Substance Abuse Program Administrators Association annual conference in Louisville, Ky.

“Our nationally representative analysis clearly shows that drug use by the American workforce is on the rise, and this trend extends to several different classes of drugs and categories of drug tests,” says Barry Sample, Quest Diagnostics’ senior director of its employer solutions unit. “The 2015 findings related to post-accident testing results should also be of concern to employers, especially those with safety-sensitive employees.”

The Drug Testing Index examines illicit drug use based on an analysis of de-identified results of nearly 11 million workforce drug tests, including 9.5 million urine, 900,000 oral fluid and 200,000 hair laboratory-based tests performed by Quest Diagnostics last year. The analysis shows that the positivity rate for the urine drug tests increased to 4 percent in 2015, compared to 3.9 percent the previous year and up by 14 percent over the 10-year low of 3.5 percent in 2010 and 2011. The last year that the positivity rate for urine drug tests in the combined U.S. workforce matched or exceeded 4 percent was in 2005, when it was 4.1 percent, said Quest.

Post-accident drug testing of workers also yielded more positive results last year, up by 6.2 percent compared to 2014 (6.9 percent versus 6.5 percent). The 2015 number represents a 30-percent increase since 2011, when it was 5.3 percent.

The urine-test positivity rates for heroin, amphetamines and marijuana have increased steadily among U.S. workers since 2011, with amphetamine positivity up by 44 percent, marijuana positivity up by 26 percent and heroin positivity (as indicated by the presence of the 6-acetylmorphine marker) up by 146 percent, according to Quest Diagnostics. Nearly half of U.S. workers who test positive for any drug substance in 2015 showed evidence of marijuana use, the company reports.

The silver lining in the report is that the oxycodone positivity rate has declined for each year since 2011, confirming that opioid prescriptions have declined in 49 states since 2012.

“This report shows a welcome decline in workplace drug test positives for certain prescription opiates but a disturbing increase in heroin positives,” says Dr. Robert DuPont, former director of the National Institute on Drug Abuse. “This rise in heroin should concern both policymakers and employers. Substance abuse is a safety risk for everyone.”

Although some may be tempted to point a blaming finger at states like Colorado and Washington, which were among the first to legalize the recreational use of small amounts of marijuana, positivity rates among workers in those two states did not grow from 2014, Sample told the Wall Street Journal.

“We’ve heard concerns from employers [in those states] about the difficulty in finding and hiring workers that will pass the drug test primarily because of marijuana positives, but when we look at our macro picture, our data doesn’t necessarily bear that out,” he said.

Getting Caught in the Drug Screen

There’s an interesting new story in the New York Times today about how employers are struggling to find a key demographic of the workforce: those who are able to pass a drug test.

From the NYT story:

All over the country, employers say they see a disturbing downside of tighter labor markets as they try to rebuild from the worst recession since the Depression: They are struggling to find workers who can pass a pre-employment drug test.

The hurdle, according to the story, “partly stems from the growing ubiquity of drug testing, at corporations with big human resources departments, in industries like trucking where testing is mandated by federal law for safety reasons, and increasingly at smaller companies.”

Data suggest employers’ difficulties “also reflect an increase in the use of drugs, especially marijuana — employers’ main gripe — and also heroin and other opioid drugs much in the news.”

Indeed, Quest Diagnostics, a national drug-testing service, documented an increase for a second consecutive year in the percentage of Americans who tested positive for illicit drugs — to 4.7 percent in 2014 from 4.3 percent in 2013. And 2013 was the first year in a decade to show an increase, the story notes.

But data on the scope of the problem is “sketchy,” the NYT notes, “because figures on job applicants who test positive for drugs miss the many people who simply skip tests they cannot pass.”

The story gets at an interesting question, but one that doesn’t necessarily get enough attention these days, likely due to all the other debates raging in the workplace: When does drug testing become more onerous than advantageous for an organization?

Clearing the Haze Around Medical Marijuana

smokeEarlier this week, the Colorado Supreme Court handed down a ruling that one attorney says “may serve as a roadmap” for other courts—and employers—navigating the gray areas surrounding medical marijuana laws.

On Monday, the state high court’s 6-0 decision in Coats v. Dish Network determined that an organization can terminate an employee for using medical marijuana, even if said marijuana use occurs while off-duty.

Court documents indicate that former Dish Network employee Brandon Coats has been confined to a wheelchair since he was a teenager, as a result of injuries sustained in a car accident. Court records indicate that Coats registered for and obtained a state-issued license to use medical marijuana in 2009, as a way to treat leg spasms brought on by his quadriplegia.

On June 7, 2010, however, Coats was fired from his job as a telephone customer service representative with the Dish Network, after testing positive for tetrahydrocannabinol—a component of medical marijuana—the previous month.

At the time, Coats informed the company that he was a registered medical marijuana patient, and planned to continue using medical marijuana, according to court records. After being fired for violating the organization’s drug policy, Coats filed a wrongful termination claim against Dish, alleging the company was prohibited from firing an employee based on his or her engagement in “lawful activities” off the employer’s premises during non-working hours. Coats argued that his off-the-clock and away-from-work medical marijuana use was lawful under the Medical Marijuana Amendment and its implementing legislation.

In affirming lower court rulings, the Colorado Supreme Court found the term “lawful” applies only to those activities that are legal under both state and federal law. Ergo, employees engaging in activities such as medical marijuana use that are permitted by state law but forbidden by federal law are not protected by the statute.

While not binding in other states, this Colorado ruling could hold lessons for employers elsewhere, John DiNome, a Philadelphia-based labor and employment attorney and partner at Reed Smith, told HRE this week.

“The short takeaway,” says DiNome, “is that Federal law trumps state law. The Federal Controlled Substance Act lists marijuana as an illegal substance. As such, use of marijuana is not a lawful activity in Colorado.”

For employers, “this seems to confirm that, if they choose to have a ‘zero-tolerance’ policy with respect to drug use, they are on fairly solid ground in doing so.”

As such, “even if an employer is operating in a state where marijuana is either legal for medical or recreational use, the employer may ban use of illegal drugs and take the position that marijuana is not legal at the federal level,” he says.

DiNome notes that, while the Justice Department has said it will not prosecute certain marijuana use offenses, “the fact remains that Congress has not addressed the topic, and marijuana is still an illegal substance under federal law.”

Drug Use, Addiction at Work Continues to Rise

The use and abuse of drugs in the workplace isn’t slowing down at all. Latest reports indicate the percentage of American workers 73267092 -- drugs at worktesting positive for illicit drugs such as marijuana, cocaine and methamphetamines has increased for the second consecutive year in the general U.S. workforce — putting an end to the decades-long decline.

Indeed, this article references a government report that finds nearly one in 10 full-time workers now has a substance-abuse problem. And the latest Quest Diagnostics Drug Testing Index shows an upsurge in the positivity rate of drug tests by 9.3 percent — from 4.3 percent in 2013 to 4.7 percent in 2014. (Here is an additional link to the actual tables/stats within the index.)

“American workers are increasingly testing positive for workforce drug use across almost all workforce categories and drug-test-specimen types,” says Dr. Barry Sample, director of science and technology for Quest Diagnostics Employer Solutions. “In the past, we have noted increases in prescription-drug-positivity rates, but now, it seems, illicit drug use may be on the rise, according to our data.

“These findings,” says Sample, “are especially concerning because they suggest that the recent focus on illicit marijuana use may be too narrow, and that other dangerous drugs are potentially making a comeback.”

Dr. Robert DuPont, former director of the National Institute on Drug Abuse, says this latest analysis by Quest not only “suggests that illicit drug use among workers is increasing broadly for the first time in years in the United States [but that] public and private employers might want to consider revisiting existing substance-abuse policies to ensure that they are taking the necessary precautions to protect their workplace, employees and businesses.”

Equally concerning is the fact that abuse of legal drugs is also going up, as this news analysis by Andrew McIlvaine addresses. Drugs taken for attention-deficit-hyperactivity disorder — such as Ritalin, Adderall and Focalin — are now being abused by employees looking to add some sparks to concentration and alertness.

Will Wesch, Novus Medical Detox Center director of admissions, says many organizations are now updating their language in drug-free workplace policies to include potential impairment from a prescription drug. He urges HR practitioners to coach managers in how to engage employees suspected of such abuse and offer reasonable accommodations, up to or including modifying job responsibilities should an employee inform him or her that the medication he or she is on may impair job performance.

As for specific policies, concerns and approaches HR leaders should be considering right now when it comes to all workplace drug use, DuPont has this to offer:

“First, look at the big picture in workplace drug testing. There is much more to workplace drug testing than just testing for marijuana. An effective drug-free program includes testing for many widely used drugs [including prescription]. Second, consider the legal complications of workplace marijuana testing.  For example, several states allowing medical use of marijuana are now requiring an employer to show impairment before taking action against an applicant or employee who tests positive for marijuana. These provisions pose a significant limitation to workplace drug-testing programs for marijuana.

“I also recommend you provide clarity in your drug-free policies. … Every employee must be informed of the company’s substance-use policy and the reasons for the policy. Drug testing needs to be described in a written statement of the employer’s substance-use policy. This policy statement must clearly lay out the elements of the drug-testing program, including who is subject to testing, how testing is administered, how positive results are confirmed and what the consequences are for positive drug-test results. Supervisors and human resource staff should be trained in the employers’ substance-use policies and procedures, and be able to explain them to all employees and job applicants.”

And, again, when it comes to marijuana, DuPont says, “pay close attention to the specifics of state and local law,” obviously and especially in those states where it’s medically or recreationally legal. And make sure your drug-testing policies are being reviewed by attorneys “who are familiar with federal, state and local laws … particularly related to marijuana.”

Yes, folks, it’s a whole new world when it comes to drugs at work. DuPont says it’s time to consider “going beyond the urine cup and … the typical five-drug tests” and embrace the bigger picture now upon us.

Marijuana Acceptance Marches On

It’s still highly unlikely that any employer will ever have to allow an employee to work while he or she is stoned, whether there’s a safety 146967521 - smoking dopeor security risk or not, but the chips seem to keep falling away from those sturdy walls that made marijuana unacceptable, illegal and disallowed for years.

The latest indication that pot is going mainstream comes in this Illinois Appellate Court ruling (found on the Canna Law Blog site) affirming a Circuit Court’s ruling that just because a worker was fired for violating his employer’s drug-and-alcohol-free workplace policy doesn’t mean he can’t collect unemployment benefits.

Seems this maintenance worker for the Jefferson County Housing Authority fessed up to his employer — just before a random mandatory drug screening — that he might not pass because he had smoked pot several weeks earlier while on vacation. He was fired, even though his tests results were negative, and was turned down for unemployment benefits because of the nature of his termination.

The Housing Authority’s policy prohibits employees from being under the influence of any controlled substance “while in the course of employment.” Both the Circuit Court and Appellate Court agreed “course of employment” was interpreted too broadly by the Illinois Department of Employment Security to include off-duty hours.

“Among the reasons the Circuit Court found the agency’s interpretation unreasonable,” the blog states, “was the fact that marijuana is now legal in some states and the fact that it unreasonably restricted off-duty time while serving no legitimate public purpose.”

Yes, indeed, marijuana is absolutely now legal in some states, as this news analysis and this blog post by me indicate. But it’s more than going legal, as I also indicate. It’s becoming big business. Make that a huge industry.

Just this month, news releases came across my screen announcing a Cannabis Career Institute opening in San Diego as well as three others in Florida, Illinois and Nevada, all designed, as the releases state, to teach “ganjapreneurs how to succeed in the marijuana industry as the green rush continues.”

Attorneys and experts I’ve talked to assure me employers will always have the legal right — and responsibility — to keep their workplaces safe and drug-free. I just wonder how all this nudging from the “cannabusiness” community and the courts is going to impact how those employers sleep at night.

 

Cannabis Business Charges Full Steam Ahead

It came to my attention recently — actually in the writing of a news analysis last month — that there’s a big business growing around 465923899 -- cannabismarijuana, with 23 states now allowing for its medical use and two, Colorado and Washington, allowing for its recreational use.

(For the record, here’s that Sept. 29 news analysis — which actually aired Sept. 30 — examining the issue and what employers can really expect as more laws are passed. It was written just before the Colorado Supreme Court was to hear the case of Coats v. Dish Network and the issue of whether the plaintiff’s positive drug test should have been allowed under the state’s medical-marijuana statute. The court has yet to decide.)

With a keener understanding of this railroad coming down the tracks that is marijuana legalization and the business opportunities on board that train, I took special notice of the Hartford Courant‘s recent coverage of callback selections for a new web series called “The Marijuana Show,” aimed at giving specially selected and very “lucky ganjapreneurs” the chance to become “the next marijuana millionaire,” as the story puts it.

I also happened to notice in the piece that a handful of even-luckier finalists just finished participating in “an intense three-day business boot camp” that ended last Sunday, Oct. 12, prior to the finalists then pitching their marijuana-money-making ideas to investors in hopes of receiving financing, mentorship and attention on the show after the entire process has been filmed. (Here, too, is the Cannabis Business Times’ version of all this.)

So I reached out to co-producers Wendy Robbins, also the show’s director, and Karen Paull, to find out what I could about the boot camp. Their comments did nothing to quell the notion that there’s a most-definite marijuana-business movement afoot.

The camp, says Robbins, included “attorneys, an accountant [and] a branding expert [among others, and focused on] financial help with valuations, regulations, business-plan help, pitching advice and [of course] social media too.” Five out of the 10 finalists were even offered financing and some got mentoring help with their ideas — which ran the gamut from cannabis retail or leisure outlets to supply and distribution centers to growing establishments.

“Most shows have one winner, so we were blown away that half of the contestants got some sort of deal,” Robbins says.

“This is not a scripted show, nothing is predetermined,” adds Paull. “It’s a very organic process.” Indeed.

Looks like airing begins in December.

My story in September also references a Cannabusiness Accelerator job fair held in Seattle Sept. 19, “with the support of the [fast-growing marijuana] industry’s leaders to serve as a locus of networking and informational know-how [for job seekers], as well as a showcase for program partners, all suppliers to the new industry,” according to that company’s release about the event.

But the story does also include employment attorneys’ cautionary comments about the need for employers to not get too worked up. They needn’t, they say, ready themselves for all this marijuana-legalization and cannabis-business momentum to lead to across-the-board pot-induced workplaces (though statistics do show more employees are showing up for work under the influence).

Marijuana, they say, is still against federal law and employers still have every right, and responsibility, to maintain zero-tolerance policies because of that, and for safety and productivity reasons.

As Mark A. de Bernardo, executive director of the Institute for a Drug-Free Workplace and a Reston, Va.-based senior partner at Jackson Lewis, told me for that piece:  “This is not a crisis for employers. Their backs are not up against the wall.”

Not yet anyway, legalization supporters and cannabusiness entrepreneurs would probably say.

Drug Testing Index Reverses Direction

Most employers may have zero tolerance when it comes to drugs in the workplace, but if we’re to believe the latest data from Quest Diagnostics in Madison, N.J., fewer job candidates and workers are taking such policies to heart these days.

200273910-001For the first time in more than a decade, the percentage of positive drug tests among American workers in Quest Diagnostics’ Drug Testing Index increased, climbing to 3.7 percent in 2013 from 3.5 percent in 2012 (based on 7.6 million urine drug tests), according to Quest. The increase was fueled primarily by a rise in positive tests for marijuana and amphetamines.

As you might expect, the two states that have passed recreational-use marijuana laws—Colorado and Washington—experienced the greatest jump in marijuana-positivity rates, climbing 20 percent and 23 percent between 2012 and 2013, respectively. For the general workforce in all 50 states, the increase averaged 5 percent.

But it should also be noted that those two states experienced dramatic increases in marijuana-positivity rates prior to legalization at the end of 2012. From 2009 to 2010, Colorado experienced a 22-percent increase and Washington a 10-percent decline in positivity. From 2011 to 2012, Colorado experienced a 3-percent increase and Washington an 8-percent increase in positivity.

Barry Sample, director of science and technology for Quest Diagnostics Employer Solutions, says he’s not sure why the steep increases and declines in those two states preceded the legalization of marijuana. “It is possible that relaxed societal views of marijuana use in those two states, relative to others, may, in part, be responsible for the recent increase in positivity rates,” he says. “Yet this doesn’t explain why both states also experienced steep rises—and declines—in positivity in recent years.”

In light of these findings, Quest says it will be paying close attention to how the data evolves over the next year or two.

But what “we do know,” he adds, “is that workforce positivity for marijuana is definitely on the rise across the United States.”

In addition to these findings, Quest reports that use of amphetamines showed an increase across all three specimen types and oxycodone positivity declined 8.3 percent between 2013 and 2012 and 12.7 percent between 2012 and 2011 in the combined U.S. workforce. (In fact, four states actually experienced double-digit declines in oxycodone-positivity rates in both 2013 and 2012: Florida, Massachusetts, New Jersey and Ohio.)

Of course, the rise in positivity rates could be aberration. After all, it’s just one year — and hardly the kind of move employers need to get worked up about. But that said, it’s still something they’re probably going to want to keep a close eye on, especially if more states decide to follow in the footsteps of Colorado and Washington and pass laws legalizing the recreational use of marijuana.