By Chris Przybylski
Editor’s note: Please be aware that drug testing regulations are constantly evolving. It is a good idea to receive a written legal opinion before any change in testing procedure.
Drug testing is not only required in many industries but is also mandatory for a great deal of contract work. According to MjBizDaily, as of this writing, 40 states have legalized the use of medical marijuana and 24 allow recreational use as well. Despite this widespread acceptance, marijuana still remains illegal at the federal level, creating a patchwork of legal rules and guidelines for businesses.
Drug testing for CDL drivers
It is important to note that the rules are clear for CDL drivers—marijuana use is still tested, and a positive drug test will require the driver be removed from safety sensitive functions. For those with Federal Transit Administration (FTA)-regulated business, this extends to mechanics and dispatchers as well. The return-to-duty process and reporting requirements are the same for marijuana as they are for other drugs.
Why should you conduct drug testing?
According to Quest Laboratories, 4.3 percent of workers tested positive for cannabis in 2022, but for those testing following on-the-job accidents, the rate was 7.3 percent. This strongly suggests that employees who use marijuana are far more likely to be injured at work.
Along with this fact, there are several other reasons a company may choose to conduct testing for non-CDL drivers or even non-driving employees. The most common reasons are:
1. Improved safety
2. Risk aversion
3. Contractual requirement
4. Legally requirement
5. Workers’ compensation discounts
Given the wide variety of reasons for wanting to test, it stands to reason that many companies must or would like to continue drug testing for marijuana as well as other drugs. So how do we do that when it’s legal?
Americans With Disabilities Act (ADA) and marijuana
The ADA bans discrimination based upon medical conditions, which would normally include the prescription of medication. However, because the ADA is a federal regulation and marijuana is not a federally recognized medication, there are no employee protections provided for marijuana use.
State and local regulations
Local regulations vary drastically regarding marijuana use but currently none provide employee protections for legally required testing, whether under local, state, or federal regulations. However, some states have strong protections in place for other workers. Here are a few highlights:
❱ New York: Companies may not test employees for cannabis unless legally required to do so.
❱ Washington and California: Companies may not test for metabolites but may test for active compounds. Oral fluid testing can meet the requirements, but urinalysis may not.
❱ Arizona: Companies must show a business need for testing.
Choosing who to test
For a company choosing to implement testing, especially in states where marijuana is legal, communication is key. It is important to determine which types of employees will be tested and why, but it is equally important to make sure they understand why.
Safety sensitive positions
A great example is company mechanics. The best driver in the world won’t stop a vehicle with bad brakes, so clearly the mechanics affect the safety of the passengers as much or more than the driver. Mechanics are also more likely to be injured on the job, even more so if they’re under the influence.
Could the same be said for dispatchers? Maybe. Dispatchers are generally responsible for determining if drivers are under the influence and making sure they don’t make it to the road if so. Can they do so if they’re under the influence?
Other positions
Customer service representatives, accounting personnel, general management, and other office positions are probably far less likely to affect the safety of others, but they can certainly adversely affect the business.
Regardless of who you choose to test, it’s best to create a clear policy with rules for what happens if they test positive or refuse and why it’s important to test that position. Sharing this information, including in your handbook, can go a long way toward staff buy-in and a smooth testing process.
How to test
Since pre-employment testing is fairly straightforward, we’ll focus on random, reasonable suspicion, and post-incident testing best practices.
RANDOM
Conducting random drug testing at frequent intervals is the best way to discourage drug use. Best practices involve testing the employee during the workday with no notice and requiring the chauffeur or employee to complete the test immediately. This limits the ability for them to tamper with the sample or provide an intentionally diluted sample. Once the employee is notified, they should proceed directly to the test location.
REASONABLE SUSPICION
There is no great way to tell someone you think they’re under the influence, especially if you end up being wrong. It is highly recommended to make sure all office staff are trained in reasonable suspicion and that, whenever possible, two individuals document the observed behaviors.
Individuals suspected of being under the influence should be driven to the testing facility and then driven home, unless instant test results show they are negative for all substances. If an individual is suspected of being under the influence attempts to drive, it is highly recommended that you contact local law enforcement immediately.
POST-INCIDENT OR POST-ACCIDENT
Following a workplace incident, an employee should be driven by a staff member for drug and alcohol testing. Whenever possible, remove the employee from any safety sensitive functions until the results are received.
Summary
Despite your personal feelings about marijuana use, drug testing is still a good idea for most businesses (and is obviously mandatory in some cases, especially for your DOT-regulated drivers). Using this guide can help you navigate the changing landscape, but remember the rules are always changing. It’s highly recommended that employers continue to educate themselves on best practices and new rules as they evolve. [CD0324]
Chris Przybylski is the co-founder of LBC Fleet. HE can be reached at chris@lbcfleet.com.