Substance abuse testing enters the legalized marijuana era
Drug testing has always been a significant burden to implement and maintain; especially in settings where Department of Transportation guideline or other more stringent regulation must be adhered to. There has always been that debate of how much drug testing was appropriate in relation to the individuals identified as using either legal or illegal drugs or alcohol. Recent laws passed across the nation to legalize marijuana either for medical purposes or for recreational use has brought considerable angst in the safety profession as to what the appropriate substance abuse program should look like.
Who tests, who doesn’t
Industry surveys show more than 60 percent of substance abusers are employed. They also show 40 percent or more of employers do not do pre-employment drug testing and almost 70 percent don’t test current employees -- many citing no regulatory requirement to do so. Obviously, those numbers would vary widely between industries. For example the petrochemical and transportation industries’ would be much more regimented than say, the restaurant and service industries.
Organizations that do not conduct employee drug screening cite these reasons: their organization does not believe in drug testing; drug testing was not required by state or federal law for the business they are operated in; there was no viable return on investment for drug testing; and drug testing was too costly.
There is a polarization between the organizations relying on industry studies that cite increased worker productivity, decreased worker turnover, and decreased absenteeism; and the organizations that see drug testing as infringement into their employee’s personal lives, a heavy burden of regulation and too little return on the time and money required to run a substance abuse program. The entrance of legalized marijuana into our society has only proved to increase the polarization of these two stances.
Even as quantitative benefits are shown touted, many of the positive outcomes are hard to grasp as tangible reasons to buy in. For example, one study by the Substance Abuse and Mental Health Services Administration (SAMHSA) states that substance abusers change jobs as often as three times annually. Regardless of how accurate that number is, most organizations won’t see those three job changes (only one change would take place in their organization) and even then it may or may not be associated with substance abuse.
The additional cost of recruiting for that vacancy isn’t assigned in the “drug abuse” line of the budget, so tracking the organization’s cost of substance abuse is minimized if not lost all together.
Similar studies show drug abusers are less productive. In most organizations, save piece work manufacturing, there are few if any metrics for individual employees’ productivity. I offer Facebook as a good example. The Washington Post reported an estimated $28 billion per year in valuable workplace productivity is lost each year to those surfing on Facebook. Fascinating, but hard to prove accurate. Available at: https://www.washingtonpost.com/news/wonk/wp/2013/07/06/here-are-all-the-things-that-supposedly-cost-the-u-s-billions-in-lost-productivity/
Four benefits of testing
Most studies and organizations that provide information on the benefits of a robust substance abuse testing program can be boiled down to four workplace improvements associated with the testing: decreased worker turnover (typically between 15 and 20 percent); increased worker productivity (typically around 30 percent); decreased absenteeism (typically as high as 50 percent); and decreased workers’ compensation claims (typically as high as 50 percent). For example, statistics from the U.S. Department of Health and Human Services, National Institute on Drug Abuse show that substance abusers as much as double the cost of workers’ compensation claims for their employers.
Cost-savings are hard to prove
The substance abuse market was valued at $2.8 billion in 2014 and is expected to be $3.9 billion by 2020. Available at Market Watch: http://www.marketwatch.com/story/global-drug-of-abuse-doa-testing-market-size-of-29-billion-in-2014-to-witness-5-cagr-during-2015---2020-2015-08-04
These results appear to set up a clear-cut return on investment for any type of substance abuse testing, but others are not so fast to jump on that wagon. For example, in a study done by the University of Pennsylvania, studies relating to the impact of drug use in the workplace were analyzed and it was determined there was significate data that raised questions as to the cost effectiveness of substance abuse urine testing.
Plus, the American Management Association surveyed companies that were doing substance abuse testing and less than ten percent said they had any statistical information that would substantiate any improvement for areas of improvement mentioned above.
Some estimates of lost production in industry due to drug use are now as high as $100 million dollars a year. This number is highly disputed by non-drug testing organizations such as the American Civil Liberties Union (ACLU). ACLU claims this number was originally derived by taking the average household income of homes that had a substance abuser living there and subtracted that from the average household income of homes that didn’t have a substance abuser to find that the delta was the “lost productivity” of American substance abusers. Drug Testing a Bad Investment found at: https://www.aclu.org/files/FilesPDFs/drugtesting.pdf
To tighten or loosen policies?
Now that 23 states have legalized medicinal marijuana use, and four states and Washington DC have legalized recreational use, companies are trying to decide between the two extremes: tightening policies on positive test results to keep users out of their workforces, or loosening them to avoid driving away qualified employees. These decisions must be weighed to find a balance: on one hand, there are worries about employee privacy and morale; on the other, there are issues on workplace safety and productivity. Can you reconcile the two sides?
The recent legalization of marijuana in so many states will most likely drive organizations to test more and/or toughen penalties for positive tests; and no doubt will bring up privacy issues for many employees. There’s the notion that “what I do on my own time is my own business.” The issue is not only complicated by medical and recreational marijuana laws, but by the fact that testing only measures whether a person has recently used a drug; it doesn’t measure impairment.
Legalization, thresholds, impairment measurement and personal freedoms and liberties make substance abuse testing a complicated issue for safety and health professionals -- if you’re not in a regulated industry such as governed by DOT drug testing rules. In our profession we are used to debating Threshold Limit Values (TLV), safety multipliers, and leading and lagging indicators; but this issue with its different angles will challenge you to come up with “the right” policy.
State vs. federal marijuana law
An individual’s constitutional right in states allowing medical and/or recreational use of marijuana does not trump or supersede an employer’s constitutional right to maintain a drug-free workplace. In most states, employees can be fired after testing positive for marijuana use even if they are medically registered, haven’t smoked on the job and aren’t significantly impaired when an accident takes place. The key legal fact is that regardless of a state’s law, using marijuana remains a violation of federal law.
OSHA delays enforcing post-incident drug tests found to be retaliatory
OSHA is delaying enforcement of the anti-retaliation provisions in its new injury and illness tracking rule to conduct additional outreach and provide educational materials and guidance for employers. The agency is concerned that post-incident drug testing has been used by some employers as a retaliatory tool. Inspectors will decide on a case by case basis if post-incident drug testing is being unfairly implemented. Originally scheduled to begin Aug. 10, 2016, enforcement will now begin Nov. 1, 2016.