Hiring and maintaining a reliable and operational workforce has become difficult for employers partly due to illicit drug use among the American workforce. The most recent analysis of workplace drug testing conducted by Quest Diagnostics is quite revealing. Quest Diagnostics publishes the findings as a service to the public.
Test results were examined according to three categories of workers: (1) federally-mandated, safety-sensitive employees which include pilots, bus and truck drivers, and nuclear power plant workers for whom routine drug testing is mandated by federal agencies; (2) the general workforce; and (3) the combined U.S. workforce.
The 2016 results of the nationwide survey, which involved more than 10 million workforce drug tests, evidence that the drug positivity rate is the highest among the American workforce since 2004. Specifically, cocaine, marijuana, and methamphetamine use has broadly increased. Since 2012, methamphetamine use has increased 64 percent. Further, for the fourth consecutive year, positive test results for cocaine increased in the general workforce by 12 percent in 2016. The upsurge in cocaine use is not only limited to the general workforce, it also increased for the second consecutive year in federally-mandated testing for safety-sensitive jobs.
Moreover, the rate of cocaine use in post-accident drug tests was double the rate of pre-employment drug tests. This increase demonstrates that pre-employment screening may not be representative of actual drug use after an employee is hired. However, post-accident drug and alcohol testing was affected by OSHA’s electronic accident reporting rule. The rule does not prohibit employers from using such testing, unless it is used as a form of retaliation. If OSHA finds that an employer drug testing policy deters reporting or if an employer took action in retaliation, it may issue penalties for such violations. The rule does not impact employers who are required by law to drug test employees, because the motive is not retaliatory.
With respect to marijuana use, in Colorado and Washington, where recreational marijuana use is now legal, the overall positivity rate for such use beat the national average in 2016. Particularly, marijuana positivity in both states increased around 10 percent, while the overall nationwide marijuana positivity rate increased by only four percent. There remains a conflict between state and federal law on marijuana use as discussed in our previous Newsletter article.
To date, 29 states and the District of Columbia have medical marijuana laws. However, unless the state has implemented a provision that protects medicinal users from adverse employment actions, an employee can be fired or an applicant can be denied employment for such medicinal use. For example, Arizona implemented an employee-friendly law which includes a provision prohibiting discrimination against medical marijuana cardholders or failing a drug test if the use occurred outside the establishment. But the courts are on the employers’ side, permitting adverse employment action for marijuana use even in states where such use is legal. The courts support their position by citing to the fact that marijuana use is still considered illegal under federal law.
This increase in drug use among the American workforce should encourage employers to consider whether they have safeguards in place to prevent and detect ongoing drug use by employees.