EHS Management, Personnel Safety

Bill Current on Post-Accident Drug Testing and Cannabis Legalization

On our latest episode of the EHS on Tap podcast, we discussed a persistent problem for occupational health and safety managers—post-accident drug testing. Read on for a transcript of our conversation with Bill Current, President of the Current Consulting Group and a 30-year veteran of the drug testing industry.

Drug test

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This podcast was originally published on April 14, 2020, and if you’d prefer, you can find the full audio here.

Justin Scace: Hello everyone and welcome to EHS On Tap. I’m your host, Justin Scace, Senior Editor of the EHS Daily Advisor. And we hope that all of our listeners are staying safe in the midst of the COVID-19 pandemic. I am recording from my home office for the first time today and if you are at home as well, our podcast is back to keep you company with discussions about some other big issues facing EHS professionals today.

Now, one of those issues and it’s a persistent problem for occupational health and safety managers is post-accident drug testing. The issue has been complex for some time, but the recent patchwork of state regulations surrounding the legalization of cannabis or marijuana adds a whole other level of potential confusion. So for today’s episode sponsored by OraSure, we’re going to chat with a drug testing expert about what you need to know.

Joining us today on the podcast is Bill Current, President of the Current Consulting Group and a 30 year veteran of the drug testing industry. Bill is the author of 10 books on substance abuse related issues and a regular presenter at conferences, seminars, workshops, and webinars. And he is widely considered one of the leading experts on drug testing and the drug testing industry. Bill will also be presenting an upcoming free webcast for the EHS Daily Advisor, titled Accidents at Work: Understanding Post-Accident Drug Testing In The Age of Legal Pot Use, on Tuesday, April 28th at 2:00 PM Eastern time. So Bill, thanks so much for taking the time to talk with us today on EHS On Tap.

Bill Current: Well, thank you for having me. It’s a real pleasure.

Justin Scace: Good. We’re glad to have you. So we do a podcast episode related to drug testing pretty much every Spring. And partially the reason for that is because the legislative landscape surrounding drugs and workplace drug testing, it just keeps changing, especially as it relates to cannabis or marijuana. So could you tell us a little bit about what things are like right now and also maybe how trends are expected to take shape in 2020?

Bill Current: Sure. And let me start by saying that 2019 was one of the most active years for state legislation that affects drug testing in the workplace. And most of those bills were marijuana bills. So almost impossible to predict what’s going to happen this year under the circumstances. We’d already seen over 100 bills introduced in 2020 that would have had an impact there or may still have an impact on drug testing in the workplace. Again, many of them related to marijuana.

But, if 2019 is any indication what we were in for in 2020 and we’ll see if it really happens now under the circumstances, there’s a lot of states amending their legal marijuana laws to place restrictions on preemployment drug testing for marijuana. Now, that’s not to say you can’t test for marijuana when you’re conducting preemployment tests, even in states that have legalized the drug, just that there have been bills introduced at the state level that would place restrictions on really sort of the result of the test.

In other words, let’s say they conduct a pre-employment test for marijuana and somebody tests positive. There have been restrictions placed on what employers can do with that test. And the bottom line there is that, and there are not a lot of states, Illinois is one, Nevada is another one, where the bottom line is that employers can’t deny employment to an applicant based solely on a positive drug test result for marijuana when the drug is legal in that state. And so we’re seeing a lot of those types of bills. One thing that’s very interesting about many of those bills, and we saw it in Illinois when they passed their law, we saw it in New York City, the New York City ordinance was scheduled to go into effect this May, and it probably still will. Very, very restrictive law in New York City when it comes to pre-employment testing for marijuana.

But, in all of these states that are creating these restrictions, they’re also including what’s called a safety-sensitive carve out, meaning that there are certain safety-sensitive functions that are excluded from these restrictions. So firefighters and other first responders, truck drivers, and other people, depending on the state that perform safety-sensitive functions, can still be pre-employment tested for marijuana. Even though, restrictions have been placed in other industries.

Justin Scace: Interesting. So beyond this whole regulatory landscape that we’ve just been talking about, it seems like drug testing is a perpetual topic of concern among health and safety professionals. So after so many years in the industry, what have you found to be the most persistent points of confusion when it comes to post-accident drug testing?

Marijuana legalization, law

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Bill Current: Well, first and foremost, drug testing is legal in every state. And post-accident drug testing is legal in every state. So sometimes we hear from employers that in my state we can’t do this or we can’t do that. And going back to the marijuana issue for a moment, in the Current Consulting Group, we do two annual surveys; one of the drug testing industry and one of employers. And in the 2020 employer survey, which we just released a few weeks ago, 33% of employers said that testing for marijuana is illegal in my state. Well, that’s not true in any state. But, there’s a lot of confusion on that subject and it spreads to other areas as well. As you mentioned from outset of today’s podcast, I’ve been doing this for more than 30 years now. And in the early days of drug testing, the late ’80s, the early ’90s, there were many employers that thought drug testing itself was illegal.

It’s never been illegal. There have been states that have place restrictions on it, but it’s always been legal to test, and it’s always been legal to conduct post-accident testing. I would say to your listeners though, the most important advice I could give you is if you’re outside of the, say, federally-mandated programs, like the Department of Transportation, and you’re testing under your own company authority, then comply with the state laws that apply to you. And the most common question I get on that front is, which state applies to me if I’m in multiple states? And the answer is very simple, all of them.

So make sure you understand what the state says about post-accident testing where you do business. It may be different, say from Iowa to Florida, but if you’re in both of those states, your policy has to reflect the requirements and perhaps restrictions that apply in both states so that you’re complying with the state laws in every state that you do operations.

But the bottom line is drug testing is legal in all 50 states. So when employers say, “We can’t do that in my state.” Typically, that’s not true because drug testing is legal in all 50 states and post-accident testing is legal in all 50 states. But there may be state laws that have not restrictions, but conditions placed on them. For example, what is a safety-sensitive position and what kind of an accident triggers a drug test, a post-accident drug test? So those are things that employers need to pay very careful attention to.

Justin Scace: So now, anti-retaliation provisions, those are huge when it comes to drug testing. Could you tell us a little bit about what anti-retaliation is as it relates to testing? And how EHS pros should take this into consideration when they’re shaping their policies?

Bill Current: Well, absolutely. And that is a big issue. And it’s always been an issue since the beginning of the drug testing era back in the mid ’80s. You don’t want to create an environment in which employees are afraid to come forward and report an incident or an accident that’s going to result in a drug test, because you’ve created a culture within your company that gives the impression that you punish people who are involved in a post-accident drug test or who report an accident. You want them to be able to come forward and be able to report that they had an accident, because sometimes there’s legal liability issues that come into play and other concerns that the employer needs to know about. So beyond that, your policy has to reflect the fact that when somebody does report an accident and when somebody does test positive in a post-accident scenario, for example, that there are going to be some options available for what happens next.

For example, there may be circumstances where under certain conditions, an employee may be terminated, not necessarily because they tested positive, but because their behavior led to an accident. And one of the conditions that followed the accident was a drug test, which showed that the individual had drugs in their system. You don’t want the appearance of a punishment or retaliation against somebody who reports the accident or who tests the accident … you don’t want there to be a connection between those two things, so that individuals aren’t afraid to come forward and they know that under most circumstances employees are going to be given an opportunity to explain the situation. There may be a legitimate excuse for the positive drug test result, et cetera, et cetera.

Justin Scace: So here’s the big question that most of our listeners probably have right now. What should happen when an employee tests positive in a post-accident drug test?

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Bill Current: Well, let’s answer that question in two different scenarios. So, if it’s a DOT, if it’s a Department of Transportation covered drug test, then there are regulations that tell you exactly what happens next. For example, you’re going to remove that individual who test positive in a post-accident test from performing any further safety-sensitive functions. And then depending on the circumstances, that individual will be evaluated by a substance abuse professional. If they’re not terminated, they’re going to go through some type of a treatment program. Once the substance abuse professional feels the individuals ready, they’re going to be tested again, in a return-to-duty test. They may be subject to follow-up testing for some period of time. And they’re going to come back to work having proven that they successfully completed the treatment program and that they’ve got a negative drug test result to go with it.

In a non-DOT setting, you can do exactly the same thing. But again, the key is what does the state law say you must do or can do. You just want to make sure that you’re complying with the state laws. You’re not violating the Americans With Disabilities Act in any way, and treating a current alcohol abuser in a way that would appear to be discriminatory. But you want to make sure, and this is the key, that you’re not knowingly putting a worker back into a safety-sensitive function without going through all the efforts possible, making a good faith effort to make sure that that individual is not using drugs anymore.

That’s the key. From an employer standpoint, you want to make sure that you’ve covered all those bases and if you’re not going to terminate the individual that you’ve required them to seek treatment and to produce a return-to-duty, a negative drug test results so that you as employer have made a good faith effort to ensure that when this person comes back, they’re no longer using drugs.

Justin Scace: Absolutely. Another aspect of drug testing that comes into play, and you’ve mentioned it several times, touched on it a couple of times, is whether or not a position is quote, “Safety-sensitive.” Any tips for making this determination? And how should that affect an employer’s drug and alcohol policy?

Bill Current: Well, of course, DOT defines that if you’re in the trucking industry or aviation, et cetera, et cetera, they’re very clear about what is a safety-sensitive position—what positions are covered by the regulations. The real tricky part comes outside of the DOT regulations when an employer’s going to drug test by its own authority. And here again, can’t stress this enough. Make sure that you understand what’s required by the state laws that apply to you. Some states are very specific about what a safety-sensitive position is; other states leave that mostly to the employer to define. So one tip there is to ask yourself, if an individual was unable to safely perform their duties because they were under the influence of drugs or alcohol, then we can consider that a safety-sensitive position. Now, the state may disagree with you in some instances depending on what the state law says, but generally speaking, that’s what you’re looking for.

You want to kind of place a little bit of a filter over the issue and ask yourself, if this individual was under the influence of drugs or alcohol, could they safely perform the duties of their job? And if the answer would be no, and we’re not talking about impairment, we’re just talking about being under the influence. And we can talk about the difference between under the influence and impairment.

Justin Scace: Yeah, sure.

Bill Current: But, you just want to make sure that you run it through that filter. You ask yourself that question. Now, could every position somehow be defined as safety-sensitive? I guess, if we were really going to stretch the definition out, maybe somebody could come to that conclusion, but in reality, you can’t do that. And if you sort of took it to extremes and you considered everybody in the office, the administrative assistants, and the call center people, et cetera, as safety-sensitive, I think at some point down the line somebody could challenge that and probably do it successfully.

Justin Scace: So you just briefly mentioned, if I could just do a quick aside, the difference between impairment and under the influence. Could you just briefly describe what that difference is?

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Bill Current: Yes. Generally speaking, and these two terms, the word impairment and the term under the influence are erroneously used interchangeably. Generally speaking, impairment is a legal term. Driving while impaired. We know that on a national basis somebody who gets pulled over and test positive with a 0.08 blood alcohol content level is considered impaired, driving while impaired. You want to stay away from the term impairment in your drug testing policy, even if your state drug testing law refers to it. Because a drug test doesn’t actually prove impairment, it just proves that the person has drugs in their system. Under the influence, however, can be seen as more of a policy issue, a policy term. And you define what that means in your drug testing policy. That’s the big difference.

Justin Scace: Great. Thanks for clarifying that. One aspect of legalized cannabis in particular is that the testing methods, they haven’t kept pace with legalization. How are testing technologies evolving to address this problem so that an employer can test for impairment with the same efficiency that they already can for say, alcohol intoxication?

Bill Current: Well, again, we’re not going to talk about impairment, right? We’re going to talk about-

Justin Scace: … Right, right, sorry about that.

Bill Current: We’re going to talk about being under the influence. And so no drug test can prove impairment. It can prove that somebody has drugs in their system, but it can’t definitively prove that somebody is impaired, either from a legal or a scientific standpoint. So what you want to look for, especially if you’re in a legal marijuana state, is a testing method that has a shorter window of detection. So the three major testing methods are urine, hair, and oral fluid. And each of these three testing methods have very different windows of detection. I’ll just say that of those three, the only one that can show recent use—definitively—is oral fluid. Because oral fluids window of detection is much, much shorter than urine and hair testing.

And it also detects use almost immediately after somebody’s used the drug. Whereas with urine, there’s a lag time of several hours. And with hair, there’s a lag time of several days. So what you’re looking for is a tighter window of detection that opens up almost immediately after the person has used the drug and closes within a period of hours. That’s why lab-based oral fluid testing has become so popular. And in the webcast that we’re going to do, I’m going to talk about that in very specific detail.

Justin Scace: Okay. So speaking of which, we’re looking forward to your free webinar that’s coming up on April 28th, specifically addressing workplace accidents and drug testing. So before we sign off, is there anything that you’d like to share with our audience about what they could expect to learn when they attend?

Bill Current: Sure. One, I want to invite the audience to come with questions. I’m going to provide some very specific information about the connection between drug abuse and workplace accidents, so that there can be no misunderstanding or confusion when it comes to that. People under the influence of drugs and we’re not talking about impaired, we’re just talking about being under the influence, which we’re defining in our policy as among other things, a positive drug test result. Those individuals tend to have a higher rate of workplace accidents compared to individuals who do not use the drugs. So I’m going to talk specifically about that. I’m going to provide some very good statistics that the audience can refer back to if they want to read the studies themselves.

And then I’m going to get into detail about the different testing methods, comparing the windows of detection, comparing what it means to be able to detect recent use, especially if you’re in a legal marijuana state. And then how to address those issues in your company policy, because that’s the most pressing need I think that we have there is to make sure that employers have this in their policy and they’re not simply saying it, but it’s written. And employees can look at it, see it, and know that this is the standard that my company is going to hold me to.

And I’m going to talk in detail about those things. So I invite everybody to come to the webcast with questions. I’d be happy to address those questions and I’m going to talk in as much detail as we have time to cover.

Justin Scace: Awesome. That sounds great. Well, we’re looking forward to learning more on your webcast in a couple of weeks and thanks again, Bill, for joining us today on EHS On Tap.

Bill Current: My pleasure.

Justin Scace: And we’d also like to thank OraSure for sponsoring today’s episode. Now, to learn more about post-accident drug testing and its place within your safety program, be sure to join Bill’s upcoming webcast, Accidents at Work: Understanding Post-Accident Drug Testing In The Age of Legal Pot Use on Tuesday, April 28th, 2020, at 2:00 PM Eastern time. The webcast is free and if you can’t make the live performance, you can listen to the presentation on demand at your convenience. Although, as Bill just mentioned, bring your questions if you can to the live performance.

Use the links on this podcast episodes, EHS Daily Advisor webpage to register today. And as always, look out for new episodes of EHS On Tap and keep reading the EHS Daily Advisor to stay on top of your safety and environmental compliance obligations. Get the latest in best practices and keep your finger on the pulse of all things related to the EHS industry. So until next time, this is Justin Scace for EHS On Tap.

alt link text Bill Current is the President of the Current Consulting Group (CCG) and a 30-year veteran of the drug testing industry. He is the author of 10 books on substance abuse-related issues and a regular presenter at conferences, seminars, workshops, and webinars, and is widely considered one of the leading experts on drug testing and the drug testing industry.

Join Bill for his free webcast, “Accidents at Work: Understanding Post-Accident Drug Testing in the Age of Legal Pot Use,” on Tuesday, April 28, at 2 PM Eastern time. Register Now!