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Legislative changes are being proposed and passed at lightning speed in today’s day and age. With the breakneck speed at which laws and regulations are changing, is your workplace drug and alcohol testing program up to date and compliant with all applicable laws and regulations?

Changes to Federal Regulations

2019 brought about a number of changes for federally regulated employers, perhaps the most impactful being the release of oral fluid mandatory guidelines (OFMG) from the Substance Abuse and Mental Health Services Administration (SAMHSA).¹  Effective as of January 1, 2020, the OFMG provide guidelines for SAMHSA-regulated employers that wish to use lab-based oral fluid as a drug testing method in their workplace(s). A 12-18-month implementation period will follow the January 2020 effective date, following which federal agencies (and employers in states that require compliance with SAMHSA regulations) will be able to conduct lab-based oral fluid testing of their employees. It is expected that the Department of Transportation (DOT) and Nuclear Regulatory Commission (NRC) will follow suit.

In addition to the OFMG, the Federal Motor Carrier Safety Administration (FMCSA) issued a number of regulatory updates, all pertaining to the Drug and Alcohol Clearinghouse (the Clearinghouse). Regulatory updates included changes to the federal Chain of Custody and Control Form (CCF), an extension on the compliance date for certain Commercial Driver’s License (CDL) transactions from January 2020 to January 2023, and updates to the federal Alcohol Testing Form (ATF).

Recent Changes to State Laws

The past year brought about a number of significant changes to state laws that employers should be aware of, as well as comply with. An overview of a few recent changes is as follows:

• Oklahoma medical marijuana²
  • Prohibits employers from refusing to hire, discipline, discharge, or penalize an individual based solely on card holder status
  • Employers cannot refuse to hire or otherwise penalize an individual based solely on a marijuana-positive drug test if the individual is a card holder
• Illinois  recreational marijuana³ 
  • Provisions severely limiting employer rights – see law for full details
• New York City pre-employment testing¹
  • Effective May 2020
  • Prohibits employers from testing for THC as part of a pre-employment drug test
• Tennessee Medical Review Officer (MRO) procedures²
  • Only prescriptions issued in the 6 months prior to a drug test are considered “valid”
• Nevada pre-employment marijuana testing³
  • Employers cannot refuse to hire an individual because of the presence of marijuana metabolites in a drug test
  • Includes limited protections for employers in safety-sensitive industries
  • Places additional restrictions on testing that takes place within the first 30 days of employment
• New Jersey medical marijuana updates⁴
  • Employers cannot take adverse employment action based solely on medical marijuana patient status
  • Individuals that test positive for marijuana must be given the opportunity to offer a “legitimate medical explanation”

Other Reasons to Update Your Screening Program

Employers that don’t review and update their screening programs regularly run the risk of having out of date information and practices implemented in their workplace. A regular policy and program review can ensure that your workplace is testing for the most relevant drugs – prescription drugs, for example, are currently a trending drug of abuse, and employers that don’t include them in their testing panel risk opening themselves to safety risks from prescription drug abusing employees.

A regular policy and program review can ensure that your workplace is testing for the most relevant drugs...and employers that don’t include them in their testing panel risk opening themselves to safety risks.

Additionally, an out of date program misses out on relevant social factors. In 2020, those could include, but are not limited to, the continued opioid epidemic, the rising trend of marijuana use, newly developed synthetic drugs, etc. Social trends directly impact which drugs an employer should test for, and employers not tracking trends are likely out of date on their policies and could have drug abusers in their workplace.

If you haven’t updated your panel recently, you are likely testing employees and applicants for propoxyphene and methaqualone, both of which have been staples of the standard expanded panel for a number of years. Neither drug is still produced or widely available – employers that continue testing for these out of date drugs close themselves off to testing methodologies such as instrumented point of collection testing (POCT), which offers panels that include more relevant drugs for today’s day and age.

Staying Compliant and Up to Date

Staying compliant in today’s era of quickly changing laws can be difficult and near impossible if you don’t have the right toolkit. Stay alert to pending/progressing legislation in your state(s) of business so that you are prepared for what might be immediately required changes. Work with a state law expert to ensure that you fully understand newly passed laws and regulations and know what is needed in order to keep your program compliant.

Updating your policy is perhaps the most important step to staying up to date. Rather than having a “uniform” policy that covers operations in all 50 states, create a custom policy that has addenda for each state, permitting total compliance and easy updates. Review your policy at least annually to ensure that it is in compliance with all applicable laws. In particular, monitor legal marijuana legislation that has workplace-specific language in it and be prepared to update your policy as these bills become law. Re-train supervisors and managers any time you make significant changes to your policy.

Employers that are not aware of changing laws and regulations risk legal action as a result of their non-compliance. Lawsuits are costly and can easily be avoided simply by taking steps to remain compliant.

Conclusion

Compliance is key when it comes to workplace screening programs. Companies should remain up to date on changing laws, regulations, and best practices in order to stay complaint.