Due to the increased drug use in America, more employers are recognizing the need for workplace drug testing and drug free workplace programs.
Throughout 2020 and 2021, workplace drug testing has been an increasingly hot topic, which we anticipate only getting hotter as we move into 2022, especially with additional legislation to legalize the use of marijuana and other drugs.
We continue to see an increase in positive results in the private sector, most notably since the legalization of marijuana in many states. The increased amount of stress and anxiety from the COVID-19 pandemic also is blamed as a leading cause of more use of illicit drugs and abuse of alcohol.
Some recent federal government statistics from 2020 showed that among people aged 12 or older, the percentage who used illicit drugs in the past year was 21.4% or 59.3 million people in the United States. Significant increases are expected to be reported for 2021 due to the pandemic.
A recent trend study performed by Quest Diagnostics from October 2020 indicates that misuse of fentanyl, heroin and non-prescribed opioids are on the rise, potentially due to the COVID–19 pandemic’s impact on health care access and support for individuals most at-risk for substance use disorder.
Unfortunately, there are no federal laws that mandate drug testing in private sector workplaces. Department of Transportation (DOT) regulated employers are required to have drug and alcohol testing. Also, the Drug-Free Workplace Act does impose requirements on federal contractors and those receiving federal grants. To add to that confusion, most individual states have passed laws on drug testing that sometimes conflict with federal regulations.
A key point to remember is that federal law always supersedes state law. For example, although it is legal to use marijuana recreationally in Illinois, the federal government classifies marijuana as a Class 1 controlled substance, so marijuana usage is not allowed for any DOT regulated employers and their employees.
There is a generalized trend in Americans becoming less opposed to legalizing marijuana among other drugs. Companies who are conducting workplace drug testing will need to adapt to remain compliant and protect their employees, customers and company. This includes updating their drug free workplace policies, offering the required supervisor training, and providing employee education and resources.
The primary role in the success of a drug free workplace in any business is the identification and training of a designated employer representative (DER). The DER is an employee who is authorized to determine when a safety-sensitive employee, as defined by federal transportation safety laws, might be removed from duty.
The DER is appointed by his or her employer and is trained to recognize and act upon unsafe workplace situations involving the use or suspected use of drugs or alcohol by safety-sensitive employees. There is required two-hour initial Reasonable Suspicion Supervisory course for a new DER, followed with a required one-hour annual refresher course.
For DOT regulated companies, to become a qualified DER, an individual must have detailed knowledge of the responsibilities as outlined in 49CFR Part 40, as well as those specific to the mode(s) he or she is operating within. In addition to being authorized to remove employees immediately from safety-sensitive duties, the DER also performs other duties related to the administration of the employer’s drugs and alcohol safety program.
If drug or alcohol use is suspected, the DER may immediately remove an employee from covered duties or cause the person to be removed by a supervisor. The DER also monitors the employer’s compliance with drug and alcohol safety regulations, conducts or supervises the implementation of drug and alcohol testing, and educates employees regarding the workplace’s drug and alcohol rules. When employee testing for drugs or alcohol is required, the results are sent to the DER for a determination of further action. The DER usually is the only employee allowed to receive the confidential testing results.
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