drug testing – Workforce

February 11, 2020June 29, 2023

CBD: What employers need to know

Employers don’t have to be operating in states where marijuana is now legal to be impacted by its changing status. Cannabidiol, a compound derived from the cannabis plant, is already available legally in every U.S. state. CBD oil and products containing CBD are impacting workplace drug policies in ways that are still unclear.

Confirm BioSciences, a national provider of drug testing supplies and laboratory services, has issued a report on the effect of CBD. As the medical review officer of the organization, here I answer the most common questions employers ask about this increasingly popular substance.

Q: What exactly is CBD?

A: CBD, the shortened name for cannabidiol, is an extract from cannabis, the plant that produces marijuana. It can also be obtained from the hemp plant, another form of cannabis that has extremely low levels of THC, the substance that instills a high. Hemp became legal to grow commercially in every U.S. state in 2018.

Also read: Opening up the workplace medicine cabinet

Q: What are the legitimate uses for CBD? Are there any uses that can be prescribed by a physician?

A: From a scientific perspective, the only medical condition for which CBD has been approved is a certain type of seizure disorder. The medication is called Epidiolex, and it was approved in 2018. As far as other conditions for which medical providers may recommend CBD oil, the problem is that there have been a very limited number of medical studies, with conflicting results. We’re simply not there yet in terms of scientific support.

Q: Will using CBD compromise employee performance in any way?

A; To answer this, we run into the question of whether the CBD is 100 percent pure, which is defined as containing less than 0.3 percent THC. If a product contains pure CBD, there should not be any employee performance issues. The challenge is that the vast majority of CBD products are not pure. Up to 70 percent of CBD products are mislabeled. According to a recent Journal of the American Medical Association study in which 84 different CBD products were analyzed, THC was present in 18 of the products in varying amounts.

Q: Are there any circumstances or occupations in which CBD should never be used by employees?

A: If the product used by the employee meets CBD purity standards, there should be no physical or mental impairment. The real issue is purity.

Q: How long will CBD stay in a person’s system?

A: It depends on the individual. For some, CBD oil will remain in the system for two to five days. For others it can take weeks to resolve. The typical time is around one to two weeks.

Q: If CBD is legal, why are workers using CBD-infused products failing drug tests?

A; The challenge with CBD in the workplace is that, either knowingly or unknowingly, people are using CBD tainted with THC. So people might be buying a product with CBD to help them sleep, and if that product also contains THC, it may be the THC that is impacting their sleep instead of the CBD.

Also read: Managing people in the growing cannabis industry

Q: What can be done to ensure that CBD-infused products are pure and don’t contain THC?

A: Currently no governing or regulatory body is tasked with ensuring the purity of CBD. The oversight just isn’t there to ensure that when people are buying a CBD product, they are getting pure CBD oil. For workers and employers to be adequately protected, this situation has to change.

Q: If an employee using a CBD, or a CBD-infused product, fails a drug test, what then? Whose responsibility is it to determine if the employee hasn’t violated workplace policies?

A: It’s not the employer’s responsibility to ensure that drugs do not show up on an employee’s drug screen. The employer’s role is simply to make sure that the chain of custody is intact. If the individual has signed documentation confirming that the sample provided is theirs and the sample was sealed in their presence, the employer should not be held liable.

There is another issue, however, due to the changing legality at the state level for recreational and medicinal marijuana. In states where marijuana is legal, a company may still be able to have a zero-tolerance policy (please refer to your state’s specific law regarding recreational and/or medical marijuana use). And for companies subject to federal standards, marijuana is still a Schedule 1 drug under the U.S. Controlled Substances Act. It’s in those states in which marijuana has been legalized recreationally that a many employers look for guidance.

Q: What steps should employers be taking in regard to CBD?

A: For employers with a stated drug policy, it makes sense to educate their workers about the risks inherent in CBD oil. If they don’t feel comfortable providing that information firsthand, they should partner with a qualified third party who can provide it. The employer should never put itself in the position of contradicting an employee’s physician. That way if an employee is considering using a CBD product, they can discuss their employer’s drug testing program with their doctor.

Q: Should employers be concerned about the proliferation of CBD as a legal substance?

A: It would be wise for employers to educate their workers about CBD. The ultimate responsibility, however, lies with the employee. It’s up to every individual to know exactly what they’re putting in their body and what may happen as a result.

February 4, 2020June 29, 2023

Court to decide whether an employer can require direct observation of a workplace urine-sample collection

An employer requires “direct observation” of its employees providing a urine sample pursuant to its reasonable suspicion and random workplace drug-testing policy.

The employer sends an individual of the same sex to accompany the tested employee into a restroom designated for the sample collection to visually observe the employee producing the sample. The employer’s substance abuse policy and the consent and release form provide for the testing, neither discloses or provides for the direct observation of the sample production.

These are the facts of Lunsford v. Sterilite of Ohio, in which the Ohio Supreme Court will decide whether a private-sector, at-will employee who agrees to drug testing as a condition of continued employment has a reasonable expectation of privacy during mandatory drug screening.

The court of appeals determined that the direct observation method of urine-sample collection is an unlawful invasion of the employees’ common law right to privacy. “We find appellants did have a reasonable expectation of privacy with regard to exposure of their genitals.” The issue wasn’t whether the collection itself violated the employees’ privacy. It doesn’t. As the appellate court explained, “[A]n employee consenting to a drug test waives the right to complain that his urine is collected and tested.” However, in this case, the employees “had an expectation of privacy with regard to their bodies and … the compelled exposure of their genitals and compelled urination before a stranger intruded upon that privacy.”

The Ohio Supreme Court, which held oral argument in this case last week, will now decide this fascinating issue.

If you watch the oral argument, you will not witness a whole lot of outrage toward the employer from my state’s notoriously business-friendly Supreme Court. While this case will likely be a win for the employer, it does not mean that your business should across-the-board adopt “direct observation” as the process for your drug testing. To me, it’s a horribly offensive practice that should only be used if necessary, and only after disclosure to, and consent by, the observed employee.

What advice would I provide if a client comes to me and asks about a “direct observation” policy?

I’d ask, “Why?” What are you trying to achieve? Are there less obtrusive means available to prevent employees from cheating a drug test (e.g., searches before they enter the restroom, pat-downs, etc.)? Does it make more sense to limit direct observation to situations in which you have a reasonable suspicion of cheating?
Make sure all employees have notice of the direct observation and when you might use it. Unlike the employer in this case, put it in your drug-testing policy, and have employees sign off on it as an express condition of employment. With notice and consent, they cannot complain about an invasion of privacy, as they’ve voluntarily sacrificed that right.

Just because Ohio’s Supreme Court will likely grant a thumbs-up to Sterilite’s policy in this case, it does not mean that the policy makes for good HR or that it’s one that you should adopt in your workplace. Instead, consider what goals you hope to advance with your drug-testing policy and tailor it accordingly.

November 6, 2019June 29, 2023

Decision on Positive Drug Test Reveals the Future of Medical Pot and Drug Testing

Richard Turner worked as a crane operator for Phillips 66.

The company’s substance abuse policy allowed for random and post-accident drug testing for “Cannabinoids, Cocaine, Opiates, Phencyclidine (PCP) and Amphetamines,” and mandated termination for any positive test.

On April 24, 2017, Turner was selected for a random drug test and provided a urine sample. Three days later he was involved in a workplace accident and was again tested.

The following day, Phillips 66 learned that Turner’s April 24 sample tested positive for amphetamines. As a result, the company fired him.

According to a letter Turner later provided from his physician, Turner had not been prescribed amphetamines, but had taken over-the-counter medications, including Sudafed, for unspecified “medical conditions.” The April 27 sample, and the sample from a retest Turner himself took, both tested negative. The company’s retest of the April 24 sample, however, again tested positive for amphetamines.

In Turner’s subsequent disability discrimination case challenging his termination, the 10th Circuit Court of Appeals concluded that Phillips 66 did not violate the ADA via its drug testing.

Under the ADA, an employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Turner argued that Phillips 66’s drug screen violated this rule because it revealed the potential use of a legally prescribed medication. The 10th Circuit disagreed:

The EEOC has indicated a drug test does not become a medical examination simply because “the results reveal information about an individual’s medical condition beyond whether the individual is currently engaging in the illegal use of drugs,” such as “the presence of a controlled substance that has been lawfully prescribed for a particular medical condition, this information is to be treated as a confidential medical record.” A test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.

Pay careful attention to that last sentence:

A test for the illegal use of drugs does not necessarily become a medical examination simply because it reveals the potential legal use of drugs.

Assume for a second that Turner tested positive for legally prescribed medical marijuana instead of amphetamines. Would this result be any different? Marijuana remains federally illegal. If an employer drug tests for marijuana, according to Turner v. Phillips 66, a positive test does not become an unlawful medical exam in violation of ADA merely because it could cause the employee to reveal medical information to justify the positive test.

In other words, drug tests remain 100 percent legal, whether or not they cause an employee to reveal medical information in response to the drug screen.

A great result for employers as we continue to figure out the difficult intersection between the lawful use of impairing drugs and the ADA.

December 4, 2016June 29, 2023

Prescribed Drugs Blur Policies

There is no doubt that America is in the grips of a prescription drug crisis. You cannot turn on the news without seeing a story about the dangers of opioid addiction.

And prescription medications, including dangerous opioids, provide risk for employers. The ADA’s reasonable accommodation obligations for employee medical conditions extends to the medication prescribed to employees to treat those conditions. Thus, an employer can be liable for failing to accommodate an employee’s use of legally prescribed medications.

For example, the EEOC recently sued a Georgia medical center for disability discrimination after it fired a physician for revealing that he was treating chronic neurological and musculoskeletal problems with legally prescribed narcotics. The lawsuit alleged that the employee supplied a doctor’s note explaining that he was being treated for chronic pain with a prescribed narcotic, and further explaining that he was subject to urine tests and monitoring via the Georgia Board of Pharmacy to ensure compliance with his treatment plan.

The employer, however, allegedly assumed that the medication rendered him unable to meet his job requirements and failed to engage in the interactive process with this employee to determine whether he could perform the essential functions of his job with, or without, reasonable accommodation based on the medical certification.

How is an employer supposed to maintain a safe workplace and lawfully test for legally prescribed drugs that could impair an employee’s performance? Consider these four thoughts.

Blanket prohibitions are illegal. The ADA imposes on employers an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescription medications violates this obligation.

Drug testing. Drug testing programs can include legally prescribed drugs. An employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.

Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation to enable the individual to remain employed.

Post-disclosure handling. After an employer learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability to safely perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

What about marijuana? Currently, medically prescribed marijuana is lawful in 25 states plus the District of Columbia. Does the ADA treat marijuana like any other legally prescribed drug, limiting an employer’s ability to terminate for marijuana use?

Thankfully for employers, every state and federal court that has examined this issue so far (and, granted, the sample size is small), the answer is no, employers have no duty to accommodate disabled employees’ lawful use of medical marijuana.

Why? Because even though the use might be lawful under state law, federal law still criminalizes it. The ADA does not protect an employee currently using illegal drugs as a qualified individual with a disability.

Moreover, the ADA does not consider testing for illegal drugs to be a protected medical examination. Thus, the ADA does not restrict how or when an employer tests for illegal drugs, or what employer chooses to do with the results.

As a result, every court that has examined the issue so far has concluded that an employer can enforce a drug-free-workplace or zero-tolerance policy against off-duty marijuana use.

The bottom line for legal drugs? The ADA is all about engaging in conversations and avoiding assumptions. When dealing with an employee’s medications, silence on an employer’s part equals liability. When an employee presents for duty with a prescription medication, ask, certify, verify and, if possible, accommodate.

If you cannot make a reasonable accommodation after engaging the employee, then, and only then, are you free to consider termination.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

September 6, 2016June 29, 2023

The ADA and Prescription Meds: What You Need to Know

Can an employer include prescription medications in its drug screening of job applicants and employees? Here’s a good lawyer answer for you: It depends.

Last week, the EEOC announced that it had sued an Arizona car dealership for disability discrimination after it rescinded a job offer when a pre-employment drug test revealed a prescription drug used to treat a disability.

According to EEOC’s lawsuit, Bell-Arrow Automotive, Inc. (doing business as Bell Lexus), a subsidiary of Bell Leasing, Inc. (doing business as The Berge Group), maintained a policy of refusing to employ any applicant who tested positive for one of several enumerated substances on a list identified by Bell Lexus and the Berge Group. Bell Lexus extended a job offer to Sara Thorholm to work as product specialist or a salesperson, but rescinded it when her drug test returned positive for a single substance. Thorholm explained to Bell Lexus that the substance was legally prescribed to treat a disability and would not affect her ability to perform the duties of the job. Bell Lexus refused both Thorholm’s offer of proof and her offer to change medications.

The EEOC contends that the employer violated the ADA by maintaining a “blanket exclusion policy” for certain prescription medications, and refusing to consider an exception to its drug testing policy as a reasonable accommodation. Indeed, according to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, in most cases an employer cannot even ask about prescription drugs:

Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In other words, it is the rare case in which an employer is justified in asking about prescription meds, or disqualifying from employment one who tests positive.

How is an employer supposed to to maintain a safe workplace in light of these limitations? Here are four thoughts.

Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.
Drug testing. Drug testing programs can include legally prescribed drugs. An employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.
Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.
Post-disclosure handling. After an employer learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

“What about medical marijuana,” you ask? How do these ADA concerns impact its impending legality? I’ll have more to say about this in a future post, but, most of the courts that have examined the issue of workplace drug testing for states in which medical marijuana is legal have concluded that the ADA does not protect medical marijuana because the drug remains illegal under federal law.

Stay tuned, however, as the issue of medical marijuana under the ADA is nuanced and certainly developing and subject to change.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 28, 2016June 29, 2023

OSHA Says ‘Negative’ to Post-Accident Testing

Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.

Allow me to pause while this sinks in.

While this prohibition doesn’t appear in the the actual text of the final rule, it does prominently appear in OSHA’s interpretation of the provision which prohibits employers from retaliating against employees who reporting a work-related injury or illness:

OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.… Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

“What about workers’ compensation laws,” you say? “State law requires post-accident testing. What gives?” OSHA hears your cries, and has an answer for you:

A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws.

Make no mistake, this interpretation is huge for employers. As a result of this new reporting standard, employer policies that require post-accident drug testing will face scrutiny by OSHA, and OSHA will cite you for any policy that mandates post-accident testing without consideration of the specific facts and circumstances of the injury. Further, OSHA will deem retaliatory any employer discipline for a failed or refused post-accident test unless the drug use is likely to have contributed to the accident and for which the test can accurately identify pre-accident drug-related impairment. That’s a high bar for employers to clear.

This rule was to take effect on Aug. 10, but OSHA has stated that it is delaying enforcement until Nov. 1. If you have a drug testing policy or otherwise engage post-accident testing in your workplace, now is the time to review your policies and practices with your employment counsel. This issue is very much on OSHA’s radar, which means it must be on your radar also.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.