Workplace Drug Testing in the Era of Legal Marijuana

Workplace Drug Testing in the Era ofLegal Marijuana

Institute for Behavior and Health,Inc. 6191 ExecutiveBoulevard

Rockville,Maryland March2015

Table ofContents

Preface...... 1

I.Introduction...... 2

II.TheChallenge...... 2

III.A Brief History of Workplace Drug Testing and How It WorksToday...... 3

IV.All Drug Use, Including Marijuana Use, is a Threat to theWorkplace...... 5

Adverse Effects of MarijuanaUse...... 6

V.The Impact of State-Based Legal Marijuana on Workplace DrugTesting...... 7

VI.What a Positive Drug Test for MarijuanaMeans...... 9

Marijuana Metabolism and a Positive Drug TestResult...... 9

Random Drug Tests Positive forMarijuana...... 10

Why a Test for Alcohol isDifferent...... 10

VII.Advice to Employers about Marijuana Testing and Workplace Drug TestingPrograms...... 11

Look at the Big Picture in Workplace DrugTesting...... 11

Consider the Legal Complications of Workplace MarijuanaTesting...... 11

Avoid Reliance on Politically-DerivedPseudoscience...... 13

Provide Clarity in Drug-Free WorkplacePolicies...... 13

Specifically Address Marijuana in Employee Drug TestingPolicies...... 14

Considerations for Employers of DifferentSizes...... 14

Explore Insurance Benefits for Drug TestingProgram...... 14

Consider Going Beyond the Urine Cup and Beyond the Typical Five DrugTests...... 15

VIII.Summary...... 16

Appendix: IBH Workplace Drug Testing WorkingGroup...... 17

Preface

The Institute for Behavior and Health, Inc. (IBH), a non-profit organization developing strategiesto reduce drug use, hosted a one-day symposium in Washington, DC on September 29, 2014 on thefuture of workplace drug testing in the era of legal marijuana. The meeting included thought leadersfrom public and private drug-free workplace programs, and specialists in government, publicpolicy, employment law, laboratory drug testing, and addiction treatment, among others. These andothers who could not attend the symposium became the IBH Workplace Drug Testing Working Group. A listof members can be found in the Appendix to this report. While the report has been reviewed by theIBH Workplace Drug Testing Working Group, many of whom made contributions, corrections oradded comments or material, it is solely the work of the Institute for Behavior and Health,Inc.

Funding for the September 29, 2014 symposium and the report was provided by unrestrictedgrants from the Drug and Alcohol Testing Industry Association (DATIA), DrugScan, DSI Medical,Alere Toxicology, and QuestDiagnostics.

Robert L. DuPont,MD

President, Institute for Behavior and Health,Inc.

I.Introduction

During the past three decades, drug testing of employees and job applicants has become a crucialpartof employers’ efforts to maintain drug-free workplaces. Drug use is a significant threat toworkplace health, safety and productivity. In addition to testing, drug-free workplace programs typicallyinclude education about the risks of drug use, especially in the workplace, and employee assistance programsto support treatment and long-term recovery of employees with substance use and other medicaland behavioral health problems. Workplace drug testing programs identify those who need assistancein addressing their drug use problems, reinforce prevention messages, and deter workers fromusing drugs.

II.The Challenge

The passage of public ballot and legislative initiatives has resulted in medical marijuana laws in 23states and the District of Columbia and approval of legal recreational use of marijuana by adults inColorado and Washington in 2012, and in Alaska, Oregon, and the District of Columbia in 2014. This shift indrug policy has created significant concern and confusion for many employers, employees, and jobapplicants about workplace drug testing in general and testing for marijuanaspecifically.

This report provides guidance for employers about drug testing employees and job applicantsfor marijuana use in the workplace in the context of the current legal environment. It alsodiscusses improvements in the science and technology of drug testing not only for marijuana but for otherdrugs of abuse. The recommendations made in this report to update workplace drug testing respond tothe rapidly changing drug abuse environment in theworkplace.

The challenge of providing practical advice on workplace drug testing is complicated because thesaleand use of marijuana remain illegal under federal law in every state in the nation and also becausemuch workplace drug testing today is mandated by federal law. This means that even in states thatpermit medical and/or recreational marijuana under state law, many employers must test for marijuanaand hold those who test positive accountable under federal government mandates. Thesefederally- mandated drug tests are required for millions of workers including commercial drivers, airlinepilots, flight attendants, railroad engineers and conductors, workers in nuclear power plants and manyothers in safety-sensitive positions. Additionally, numerous employers in every state receive federal grantsfor a wide variety of projects. Acceptance of federal funding requires compliance with the DrugFreeWorkplace Act. Although drug testing is not required by this Act, if drug testing is conducted byfederal grantees, it has long been considered prudent to follow federal law. Setting aside federal law, thereare substantial overlapping, and occasionally conflicting, roles of state and local laws andregulations relating to workplace drug testing in this confusing legal terrain. Ultimately, these conflicts are likelyto reach the US Supreme Court forresolution.

Employers located solely in the states that permit medical or legal recreational use of marijuanamay question whether state law or federal law applies for workplace drug testing. Although federal lawhas

trumped state law in a similarly polarized conflict over immigration law in Arizona,1 there havebeen mixed administrative findings against employers related to marijuana use byemployees.

In the face of legal uncertainty, it is important to focus on the undisputed fact that marijuanaremains illegal under federal law and that workplace drug prevention programs, including workplace drugtests,protect the health and safety of all employees as well as the productivity of theworkforce.

Occupational Safety and Health Administration (OSHA) regulations and their state counterpartsrequire employers to provide a workplace free from recognized hazards in what is commonly referred to asthe “general duty clause.” Workplace drug testing policies support essential workplace safetyand productivity standards for employers as well asemployees.

With respect to current drug testing technology and practices, this report recommends review ofthe comprehensive publication, Drug Testing: A White Paper of the American Society of AddictionMedicine (ASAM), released in 2013.2 ASAM is the leading national organization of physicians devoted tothe prevention and treatment of addiction to alcohol and other drugs. For information on ASAM’sapproach to marijuana, this report recommends two additional white papers from ASAM related tomedical marijuana3 and state-based legalization of recreationalmarijuana.4

III.A Brief History of Workplace Drug Testing and How It WorksToday

Drug testing has been used in substance abuse treatment and the criminal justice system for halfa century, during which time the technology of testing has improved dramatically. The 1981 crash ofan aircraft aboard the USS Nimitz led to an investigation which showed the widespread use of drugsamong US Navy personnel. Subsequently the US Department of Defense (DOD) recognized the highprevalence of illicit drug use in all armed forces. In response to this finding, that same year random and“for-cause” (or “reasonable suspicion”) drug testing of all active-duty personnel was implemented. This was oneof the first large-scale uses of drug testing as a prevention strategy in a workforce. The use of drugsand alcohol was seen as a clear threat to the safety and health of military personnel as well as tomilitary “readiness.” The US military random drug testing program has been credited with dramaticallyreducing drug use5 and it remains a mainstay of militarypolicy.

The explosive growth of cocaine use in the United States in the mid-1980s focused national attentionon drug abuse, including its impact on the workplace. A national effort led by the federal governmentto

1 Arizona v. United States,2012.

2 American Society of Addiction Medicine. (2013). Drug Testing: A White Paper of the American Society ofAddictionMedicine. Chevy Chase, MD: American Society of Addiction Medicine. Retrieved March 3,2015:

3 American Society of Addiction Medicine. (2010). The Role of the Physician in “Medical” Marijuana. ChevyChase,MD: American Society of Addiction Medicine. Retrieved March 3, 2015:

statements/1role_of_phys_in_med_mj_9-10.pdf?sfvrsn=0

4 American Society of Addiction Medicine.(2012). White Paper on State-Level Proposals to LegalizeMarijuana.

Chevy Chase, MD: American Society of Addiction Medicine. Retrieved March 3,2015:

5 U.S. Department of Defense, Office of the Assistant Secretary of Defense. (1999, May 13). DOD releases resultsof

1998 Survey of Health Related Behaviors. Retrieved March 3,2015:

reduce the threats of drugs in the workplace was built on earlier workplace drug preventionand treatment efforts. For decades these programs had focused on employee assistance programsthat identified alcohol abusing employees and steered them into treatment and then helped themremain alcohol- and drug-free following their return from treatment. This new national effort was shapedbyfederal guidelines for urine drug testing procedures for employees, especially insafety-sensitive positions. It also established a regulatory framework for laboratories conducting workplacedrug testing.

Since 1988 federally regulated workplace urine drug tests have included five classes ofdrugs:amphetamine/methamphetamine, marijuana metabolites, cocaine, opiates (codeine, morphine, and6- AM heroin [added in 2011]) as well as phencyclidine (PCP). MDMA (Ecstasy) with confirmatorytesting for MDMA, MDA and MDEA was recently added to the short list of drugs covered in federalguidelines. The original federal guidelines authorized testing for the five classes of drugs.The limited fivedrug- class panel has become the default standard for much of workplace drug testing, even thoughfederal regulations only apply to testing of federal employees and to the drug tests mandated by thefederal government. Most workplaces in the private sector also prohibit alcohol use on the job andconduct testing for alcohol aswell.

Through the development of federal guidelines, which include important protections for employees,and their widespread adoption in the workplace, a clear distinction was made between legal medical useof prescribed medicines by employees and the nonmedical use of such substances withoutvalid prescriptions, including potentially abused psychotherapeutic medications. To help distinguishbetween the medical and nonmedical use of drugs, federal guidelines for workplace drug testing require theuseof a Medical Review Officer (MRO) to establish the legitimacy of a medical explanation for anynon- negative drug test result and to validate the testing process. Only after a non-negative drug testhasbeen verified by an MRO is it reported to the employer as a positive test under federalregulations.

Initially, workplace drug testing was controversial. Due to privacy concerns, workplace drugtests became the subject of two Supreme Court decisions which upheld federal drug testing guidelines.6In time workplace drug testing became commonplace with a focus on pre-employment drug testing forjob applicants and random drug testing for safety-sensitive jobs and drug-free workplaces. Some employers, including but not limited to those in the field of law enforcement andsafety-sensitive industries, randomly test all employees. Individual state drug testing laws, case law, and other lawsthat relate to the workplace play key roles in determining who can be tested, how they are tested, andunder what circumstances. Among the variety of drug testing protocols are pre-employment,post-incident, reasonable suspicion, random, and substance abuse treatment follow-uptesting.

The consequences for positive drug tests vary among employers based upon the reason for thedrug test. Some employers terminate any employee who tests positive for a prohibited substance.Other employers refer employees to an employee assistance program or substance abuse professionalfor evaluation following an initial positive test result. Most employers do not terminate employees fordrug use when they voluntarily present themselves for help prior to any positive workplace drug tests.From the start, workplace drug testing has focused on addressing substance use by supportingemployee

Federal guidelines preclude testing for otherdrugs.

6 Skinner v. Railway Labor Executives’ Association, 1989; National Treasury Employees Union v.VonRaab,1989.

health, wellness, safety, and productivity. It is essential that each employer have a written drugpolicy detailing the reasons for drug testing and the consequences of positive test results. A clear,written policy promoting drug-free workforces and education of employees about the reasons for this testingis essential to a workplace program that supports prevention, treatment and recovery. The mostcommon non-regulated testing is pre-employment applicant testing. Pre-employment testing needs tobe covered by an employer testing policy in addition to employeetesting.

IV.All Drug Use, Including Marijuana Use, is a Threat to theWorkplace

In 2002 the estimated national cost of lost worker productivity including absenteeism and poorjob performance due to illicit drug use was $129 billion.7 This cost directly impacts employers,fellow employees, and families and indirectly, the nation’s economy. Employees who use drugs are morelikely to ask for early dismissal or time off, to be absent, to be late for work, to be involved inworkplace accidents, and to file workers’ compensation claims.8 Additionally, past month illicit drug users aremore likely than their non-using peers to report having worked for three or more employers in the pastyear.9Results from a blind longitudinal study of job applicants show that individuals who test positive onpre- employment tests are 77 percent more likely to be terminated within the first three yearsof employment and be absent from work 6 percent morefrequently.10

Among adults age 18 and older, 9.1 percent of full time employees used an illicit drug in the pastmonth in 2013, compared to 13.7 percent part-time employees and 18.2 percent of those whoare unemployed.11 Although drug use is more prevalent among those not employed, 68.9 percent ofall illicit drug users aged 18 and older (15.4 million) were employed full or part-time. Fordecades marijuana has been and remains the most widely used illicit drug among those who are employed.A national study of worker substance use showed that for years 2002-2004, 6.4 percent (7.3 million)of

7 Office of National Drug Control Policy. (2004). The Economic Costs of Drug Abuse in the United States,1992-2002.(Publication No. 207303). Washington, DC: Office of National Drug Control Policy. Retrieved March 3,2015:

8 US Department of Labor. (n.d.). How does substance abuse impact the workplace? elaws Advisors –Drug-Free

Workplace Advisor. Washington, DC: US Department of Labor. Retrieved March 3,2015: Programs. Rockville, MD: National Institute on DrugAbuse.

9 Substance Abuse and Mental Health Services Administration, Office of Applied Studies. (2007).WorkerSubstance

UseandWorkplacePoliciesandPrograms,OASSeriesA#29,DHHSPublicationNo.(SMA)07-4273.Rockville,MD:Substance Abuse and Mental Health Services Administration. Retrieved March 3,2015:

10 US Department of Labor. (n.d.). How does substance abuse impact the workplace? elaws Advisors –Drug-Free

Workplace Advisor. Washington, DC: US Department of Labor. Retrieved March 3,2015:JournalofAppliedPsychology,75(6),629-639.

11 Substance Abuse and Mental Health Services Administration. (2014). Results from the 2013 National SurveyonDrugUseandHealth:SummaryofNationalFindings,NSDUHSeriesH-48,HHSPublicationNo.(SMA)14-4863.

Rockville, MD: Substance Abuse and Mental Health ServicesAdministration.

full-time workers aged 18 to 64 used marijuana in the past month.12 This represented thelarge majority (77.6 percent) of those who used an illicit drug during thistime.

AdverseEffectsofMarijuanaUse

The serious threats to health and safety created by the use of marijuana were recently reviewed intwo leading medical journals.13 14 Marijuana is a drug of abuse that can produce addiction and symptomsof withdrawal.15 16 About 9 percent of all marijuana users develop addiction to the drug.17 Thisfigure increases dramatically to 17 percent if marijuana use is initiated during adolescence and increasesto between 25-50 percent among daily marijuana users.18 The early and heavy use of marijuanaincreases the risk of addiction to marijuana and it also increases risk of use and addiction to other drugs.19 Over 61 percent of Americans age 12 and older with a substance use disorder for drugs other than alcoholare dependent on or abuse marijuana, making it by far the most prevalent illicit drug of abuse inthe country.20 More Americans obtain treatment for marijuana than for any other illegaldrug.21

In addition to the link between early and heavy marijuana use and addiction, there is astrong association between marijuana use and diminished lifetime achievement; motor vehicle crashes;and symptoms of chronic bronchitis.22 There is also a relationship between marijuana use andabnormal brain development, progression to use of other drugs, schizophrenia, depression andanxiety.23

Short-term effects of marijuana use include impaired short-term memory, impaired motorcoordination, altered judgment and, in high doses, paranoia and psychosis.24 Among the conclusions reachedbyColorado’s Retail Marijuana Public Health Advisory Committee charged with monitoring health effectsof

12 Substance Abuse and Mental Health Services Administration, Office of Applied Studies. (2007).WorkerSubstanceUseandWorkplacePoliciesandPrograms,OASSeriesA#29,DHHSPublicationNo.(SMA)07-4273.Rockville,MD:Substance Abuse and Mental Health Services Administration. Retrieved March 3,2015:

13 Volkow, N.D., Baler, R.D., Compton, W.M., & Weiss, S.R.B. (2014). Adverse health effects of marijuana use.The