When it comes to background screening, drug screening, and employment verification, those in the background screening industry must keep informed of the ever-changing rules, regulations, laws, and court decisions.
What are the most impactful topics facing the industry for 2019? Of those, what will have the greatest impact on the practice of human resources related to background screening?
Here are Hire Image’s 2019 Top 10 Predictions for what is sure to demand attention this year.
1. Criminal Justice Reform Continues to Gain Momentum with the Passage of the First Step Act
On December 21, 2018, the First Step (“Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person”) Act was signed into law and is reported to bring the most significant changes to the criminal justice system in decades.
The First Step Act will reduce sentences and introduce opportunities for early release for people serving time in federal prisons, impacting over 180,000 people. It will encourage inmates to participate in job training and rehabilitation programs and allocate millions of dollars into those programs over the next five years. Inmates also have the ability to earn more credits for good behavior to shorten their prison time and transfer to halfway houses, home confinement, or other supervised release. Additionally, judges will have more discretion with mandatory sentencing guidelines for people with limited criminal backgrounds.
This law impacts only the federal court system, but we expect criminal justice reformers to use this legislation to push for changes at the local level. According to the US Bureau of Justice Statistics, 87% of US inmates are in held in state facilities and many more are in local jails.
2. Questions Not to Ask when Hiring Continue to Rise
There are more jurisdictions, both at the state and local levels, with Ban the Box laws and Salary History Bans than ever before. These laws severely restrict the information a prospective employer has access to in order to make hiring and promotion decisions. 2019 will see more of these laws go into effect, starting with both Connecticut and Hawaii adding Salary History Bans, effective as of January 1, 2019.
The substantial increase in these types of laws, coupled with criminal justice reform that is just starting to scratch the surface, is leading employers down a path they do not want to go – having to make hiring, promotion, and other business decisions with only limited information. While the reasoning behind these laws is sound, unfortunately, there is not much in terms of protecting the employers who need to balance their decision-making process in face of these laws with the effective running of their businesses and protection of their customers and property.
3. Marijuana Laws, Including Recreational Marijuana, and Cases on the Rise
Marijuana remains a Schedule I substance under the Controlled Substance Act, which makes it illegal for any reason under federal law. However, more than half of the states have now legalized marijuana for either medical or, the more expansive, recreational use. Each state then has its own nuances to further complicate the matter. This inconsistency among states and, more specifically, between states and the federal government leaves many employers wondering what the changing laws mean for their existing drug screening policies.
2018 saw a Minnesota job applicant who filed a federal class action alleging violation of the Minnesota Human Rights Act because of a company’s refusal to hire marijuana users, including medical marijuana users. And in a federal case in Connecticut, the court ruled that under the Connecticut Palliative Use of Medical Marijuana Act, employees who use the drug after work hours and are not impaired cannot be discriminated against despite the company’s federal contractor status. Delaware also recently ruled that its medical marijuana law did not conflict with the federal Controlled Substances Act and provides its own implied right of action. Cases will be on the rise in 2019 and beyond until some clarity on this issue is found.
Employers will increasingly need to review their job descriptions and perform a safety analysis to determine if accommodations are necessary, based on the applicable laws in their states.
4. Social Media Searches Continue to Rise
Employers and prospective employees are using social media more and more when recruiting or looking for employment, respectively. According to a 2018 survey, 70% of employers are now using social media. This represents a significant increase from the 22% who did so 10 years ago. That increase in percentage, along with the increasing amount of Generation Z entering the workforce demonstrates that the use of social media in the hiring process will continue to increase.
As with most business decisions, for the employer, it is a risk versus reward analysis. The reward is avoiding a potentially bad hire and the tremendous costs associated with such. This is invaluable. However, there are a few risks that employers should keep in mind if they choose this route. Some of those risks include:
- The employer may come across protected classes of information and then use that information to make a hiring decision, whether intentionally or unintentionally. Even the appearance of a decision not to hire someone based on a negative impression related to race, gender, religion, disability, or other protected classes could subject them to a discrimination lawsuit.
- There is a greater chance of coming across false positives or negatives. People use different names on their social media accounts and at least some information posted is usually incorrect. Employers run the risk of misidentifying someone or missing someone all together because of these inaccuracies.
- The employer needs to be careful not to violate the applicant’s right to privacy. It should be noted that this does not apply if the applicant’s social media settings are set to public. That information is open for anyone, including potential future employers, to review. However, if their profile is set to private, the employer cannot try to bypass those settings without risking exposure to potential liability down the road.
- The employer needs to evaluate how he or she will use information found on legal issues, including gun control, alcohol use, or legalized drugs. Employers will need to have policies in place to address these areas, and the risks, if any, that apply to their companies.
These concerns should be considered carefully in order to decide if this type of investigation is worth the effort and risk. Companies are encouraged to discuss these searches with their legal counsel and consider outsourcing this process to stay away from potential discrimination claims.
5. Drug Screening Panels and Tests will Continue to be Added in Response to the Country’s Drug Crisis
According to an analysis of over 10 million drug tests, Quest Diagnostics found that the American workforce reached the highest positivity rate for drug use in over a decade. Barry Sample, Senior Director, Science and Technology at Quest said, “[t]his year’s findings are remarkable because they show increased rates of drug positivity for the most common illicit drugs across virtually all drug test specimen types and in all testing populations.”
Poison control centers and hospital emergency rooms have reported increasing instances of abuse and overdose of synthetic (also called designer) drugs, which are not approved by the FDA. Synthetic drugs have constantly changing compounds, so that testing becomes increasingly difficult. As such, it is imperative to stay one step ahead in new drug-test development.
Drug screening panels will need to be added or changed in order to keep up with the increased use of various drugs. Both the Department of Health and Human Services (HHS) Mandatory Guidelines and the Department of Transportation’s rules reflect this trend by clarifying existing drug testing program provisions and adding certain semi-synthetic opioids including hydrocodone, oxycodone, hydromorphone, and oxymorphone, commonly referred to as OxyContin®, Percodan®, Percocet®, Vicodin®, Lortab®, Norco®, Dilaudid®, and Exalgo® to the drug testing panel in response to the increasing concern over opioid abuse in this country.
Other than the new panels, additional drug screening tests are also becoming more prevalent. Specifically, more employers are using oral fluid testing, which is considered better at detecting recent drug use than urine and hair drug tests. According to Quest Diagnostics, “oral fluid testing offers confidential lab-based drug test results. By using oral fluid instead of urine, donors can collect their own samples on-site and in the presence of a monitor, reducing the likelihood of tampering or a donor challenge later in the screening process.”
6. Data Security Post-GDPR Remains a Priority
As always, with an increase in online information, comes an increase in concern over the security of that information. Securely maintaining and disposing of records that contain sensitive information will continue to be a top priority for every business owner, especially in light of 2018’s GDPR passage. The GDPR was the first legislation of its kind, tackling threats to data security and specifically addressing a company’s accountability to their customers. These important changes required action by companies and institutions around the world. Organizations will continue to work on compliance in this area, as much of the impact of the regulation will likely be determined with cases that are sure to arise and through the reasoning of the courts in resolving such issues.
The Federal Trade Commission (FTC) is charged with the regulation and oversight of business privacy laws and policies in the U.S. that impact consumers, including the Fair Credit Reporting Act, which governs background checks and provides guidance on best practices businesses should follow to keep data secure.
In addition to following the FTC’s guidance on the proper data security practices, businesses that utilize a consumer reporting agency for their background screening services should be sure to partner with one that has achieved accreditation with the National Association of Background Screeners (NAPBS) Background Screening Credentialing Council (BSCC). The Background Screening Agency Accreditation Program (BSAAP) standard, policies and procedures, and measurements are available at http://www.napbs.com.
7. Access to Criminal Data Information will be Limited
The Clean Slate Act of 2018 was introduced in August with the goal of helping individuals charged with certain crimes rehabilitate by clearing their criminal history. If passed, federal criminal records for marijuana and minor drug-related offenses would automatically be sealed, rather than having to go through the current process for sealing records. As such, on a much larger scale, employers and landlords would not see these records when running background screenings and would have no indication if there are criminal-related red flags.
Some states have already implemented similar legislation. For example, Pennsylvania has expanded the process for sealing state criminal records to include more offenses and has automated the sealing of records, including many convictions over 10 years old, as well as arrests that do not result in conviction within 60 days. Michigan, Colorado, and South Carolina are also expected to introduce similar legislation. Thus, it appears that this movement is now occurring simultaneously at both the federal and state levels.
The legislation thus far relates to older charges or minor drug possession charges. Employers will want to keep an eye to legislation that may further restrict access to criminal record information that may impact the safety of workplaces, properties, customers, employees, and tenants.
8. FCRA Class Action Lawsuits will Continue to Result in Million Dollar Judgments
Recently, the United States District Court for the Southern District of California granted final approval of a $1.2 million class action settlement against Petco Animal Supplies, Inc. Feist v. Petco Animal Supplies, Inc. demonstrates that the trend of class action lawsuits brought against employers for alleged violations under the FCRA is not slowing down.
The lawsuit challenged the company’s form of disclosure for employment background checks, alleging that Petco violated the FCRA by: (1) obtaining consumer reports for employment purposes without the required stand-alone disclosure and (2) not obtaining the required authorization.
The FCRA is intended to protect consumers from either willful or negligent inclusion of inaccurate information in their background check reports. It also regulates the collection, dissemination, and use of consumer information. While it is intended to protect the accuracy and privacy of information used in employment decisions, it is not intended to stop employers from using background screenings. Rather, it mandates that employers follow specific rules with regard to that information and authorizations obtained from the consumer.
This is not the first large FCRA-related settlement we have seen and it is certainly not going to be the last. 2017 saw cases involving Avis paying a $2.7 million settlement in a class action lawsuit and Postmates paying a $2.5 million settlement, among others. This year brought class action lawsuits against McDonalds (pending), a PepsiCo Subsidiary ($1.2 million settlement), and now Petco.
Employers should not let down their guard in 2019 when it comes to FCRA-related lawsuits, as plaintiffs’ attorneys will continue to creatively bring suits to show the “concrete injury” requirement established in Spokeo, Inc. v. Robins, Inc. in 2016. Although most class action lawsuits that wind up in the news involve large, recognizable companies, employers of any size are at risk and should frequently review their forms and processes to ensure that they are in compliance with the FCRA. Employers should also review the laws in the states and cities in which they do business to ensure compliance with local laws.
9. Continuous Criminal Background Screening Becoming More Prevalent – It’s Not Just for On-Demand Workers Anymore
Justifiably, employers will always want to know who is working for them. Not just at hiring, but throughout their employment relationship. A current employee can engage in illegal behavior as much now as he or she could have before they were an employee.
On-demand employers, such as Uber and Lyft, have always used continuous background screening. However, for the most part, it has largely stayed in that sector, other than the healthcare and financial services industries. Now, other industries are starting to see the benefits, especially in light of the “Me Too” Movement of 2018.
The “Me Too” Movement demanded attention from employers in 2018. Employers want to know, among other issues, are they employing people who have a tendency to harass? Beyond harassment, there must be a certain level of trust. Employees also represent a company’s brand and have access to financial and other confidential information. Not having trustworthy employees can lead to loss of productivity, workplace safety, and theft.
With the consideration of continuous background screening, comes the concern over privacy. Balancing these concerns with the pressure to protect other employees, customers, and property is going to be a key priority for employers in 2019 as they determine if background screening will stay at the pre-employment stage or continue beyond.
10. International Background Screening Becomes More Commonplace
There is no doubt that businesses have the ability to become international enterprises easier and faster than ever before. This provides for more opportunities, and with more opportunities, comes more risks. One of those risks is with regard to background screening employees in, or from, another country since more companies are recognizing the fact that employees no longer have to be physically present in and can work from anywhere.
Companies are well-aware of the various federal, state, and local laws with which to comply for their background screening needs – the EEOC, FTC, and FCRA, to name just a few. However, dealing with similar laws from other countries is a “foreign concept.” Additionally, not only are there privacy laws to deal with, but cultural nuances that also play a large part in the process.
Companies in 2019 will start to consider these issues and implement strategies and global screening policies to deal with them effectively. Whether or not they have an office in another country is irrelevant because some of their US-based employees may have international backgrounds that need to be checked. Companies should implement comprehensive screening plans that are flexible enough to take into account varying laws, requirements, and cultural differences. With a plan in place, they can mitigate risks and take advantage of the benefits of increased diversity, including differing skills, creativity, and ideas in the workplace.
It is clear from all that is happening in our industry that the year 2019 will be a busy one in the background screening, human resources, and employment law fields. Hire Image will continue to monitor legal and regulatory developments in federal, state, and local jurisdictions as it relates to background and drug screening and share those changes that impact employers.
By Dave Thompson CFI
Clear the background check, drug screening test, and pass through a series of scripted behavioral based interviews with all the decision makers. That sounds like a great process until about three weeks after hiring the candidate you find out they omitted something from their application. They have a problem with taking feedback and clearly aren’t a fit for your brand.
Without any extreme changes to your current process here are five quick adjustments to make in your next interview with the goal of obtaining more truthful statements than you have in the past.
Get out from Behind the Desk
In a one-on-one interview it is common for the interviewer to sit behind their desk, in their office, with all their accolades hanging on the wall behind them. If you happen to walk into a room and you observe someone sitting behind a desk, immediately you associate that person as a decision maker, the judgmental authority figure. This is due to years of conditioning from walking into the boss’s office, the principal’s office or a court room – the decision maker is behind a desk. When we determine why people lie, we need to consider the fact that they are afraid that speaking the truth may result in a negative decision or judgment. The simple fact that the interviewer is positioned behind a desk only amplifies that fear which, in effect, reduces our chances of obtaining full transparency. Attempt your next interview next to a desk, in an open conference room, or somewhere that doesn’t shout judgment when they walk in the room.
Good People Sometimes Make Bad Decisions
Similar to our last point, people may be fearful of disclosing the truth because it may label them in a negative fashion or eliminate their chances of landing the job. We need to help remind the candidate that great employees may still have imperfections in their past. If you really put this into perspective, we genuinely think of ourselves as good people and good employees; however, we’ve all made some decisions in our life that we may not be too proud of. Prior to asking a question of your candidate, it’s important to show understanding that most candidates have made errors in judgment in the past.
For example, if you are going to ask your candidate about any disciplinary issues they have had, you should set up that question beforehand. Simply explain how sometimes good employees may have acted out of character because they were short on time, rushing a project, aggravated with the company, or maybe just not trained well. Often these acts result in coaching by their employer, but we understand everyone makes mistakes and successful people learn from those mistakes; when was the most recent time you’ve received some type of coaching at work?
Sound of Silence
Yes, it’s awkward to sit in silence while somebody in the room has their mind racing attempting to think of an answer. Allow it to happen. Often, interviewers become uncomfortable with silence and fill it with a whole bunch of nonsense. In our effort to ultimately have full clarity it’s important to allow the candidate to process their thoughts and provide an answer. However, this is not the only time silence is important. An interviewer may hear a word or a part of the candidate’s answer that triggers a follow-up question. This is a great approach to continuing to expand on a specific issue, but it’s important the interviewer allows the candidate to completely finish their answer before asking another question. Interrupting the candidate during their answer may cause them to lose their thought process or prevent them from providing further information and it’s also aggravating for a candidate who is trying to justify their qualifications. When conducting a thorough fact-finding interview – it’s important for the subject or candidate to convey their entire thought process without contamination from the interviewer.
Stop with the “Yes” or “No” Questions
Simply put, if you ask someone a “yes” or “no” question and they feel they will be discredited by saying “yes” then they will quickly say “no”. However, if we phrase the question differently to allow the candidate to think about their answer and minimize the negativity of their admission it will result in more transparency. For example, asking the candidate – “Have you had any attendance issues in the past year?” will result in a quick “No”. Instead, ask it assumptively – “How many days were you late to work in the last year, any more than 15?” Now, when the subject thinks of their answer they could tell you “No, not that many… maybe like 5 days”. Allowing the subject to minimize their admission from an exaggeration will make it easier for them to be truthful.
We Know What Happens When We Assume
This should be an obvious point – but all too often it is overlooked. When reviewing a candidate’s resume or application sometimes the interviewer makes assumptions without realizing it. The interview is a chance to dig further into the candidate’s qualifications, experience and personality; it should be anything but a formality. Assuming a candidate understands the amount of travel, type of work, or daily structure of the job they are applying for can be a disastrous mistake. Also, in review of a resume we make several assumptions. If a candidate has a prior job title that includes “Manager” it doesn’t necessarily mean they managed anybody or have managerial experience. The candidate lists a college or university on their resume for “education”, does not mean they actually graduated with a diploma. It’s important that an interviewer takes a critical look and identifies any gaps or assumptions prior to the conversation so they can ask the candidate to clarify.
Before you go through your next candidate interview in the same fashion you’ve been conducting them – I challenge you to review the above points and see if it results in a more open and truthful dialogue. Hopefully the truth doesn’t scare you away from the candidate, but if it does, aren’t you glad you discovered that before the offer was made?
David Thompson, CFI, is the Vice President of Operations with Wicklander-Zulawski & Associates, Inc. (WZ). He is responsible for the day to day operations of WZ, as well as strategic planning and the evolution of interview and interrogation content. David has also served as the Director of Investigations giving him the opportunity to manage a variety of cases while conducting interviews and consulting on investigations ranging from theft and fraud to sexual harassment and homicide. David has contributed opinions on behalf of WZ for a variety of cases and has been cited by the Federal Court of Appeals for his involvement on the topic of interview and interrogation.
The Occupational Safety and Health Administration (OSHA) issued a memorandum on October 11, 2018 to clarify its position on workplace incentives and post-accident drug testing, stating specifically that “it does not prohibit workplace safety incentive programs or post-incident drug testing.” This clarification not only eased the restrictive position previously taken by OSHA, it superseded it.
On May 12, 2016, OSHA had published a final rule that prohibited employers from retaliating against employees for reporting work-related injuries or illnesses. To the dismay of many employers, it found that “automatic” post-accident testing was retaliatory and unreasonable and would result in the underreporting of work-related injuries.
The new memorandum recognizes that an employer could take steps to create a workplace culture that emphasizes safety. For example, employers could implement:
- an incentive program that rewards employees for identifying unsafe conditions in the workplace;
- a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
- a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
The memorandum notes that testing to “evaluate the root cause of a workplace incident that harmed or could have harmed employees” is permitted. It also lists examples of permissible drug testing, which include:
- Random drug testing.
- Drug testing unrelated to the reporting of a work-related injury or illness.
- Drug testing under a state workers’ compensation law.
- Drug testing under other federal law, such as a U.S. Department of Transportation rule.
- Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
OSHA also notes that incentive programs can be an important tool to promote workplace safety and health. Those programs could include rewards to workers for reporting near-misses or hazards and a rate-based incentive (rewards employees with a prize or bonus at the end of an injury-free month or evaluates managers based on their work unit’s lack of injuries). Finally, the memorandum specifies that “[a]ction taken under a safety incentive program or post-incident drug testing policy would only violate [the law] if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
Employers should review company policies to ensure compliance with OSHA announcement.
Arkansas amended its Medical Cannabis Amendment in favor of employers
In November of 2016, Arkansas legalized medical marijuana in Initiative 6, the Arkansas Medical Cannabis Amendment (MCA). Since then, Arkansas has taken steps that demonstrate the state has an employer-focused approach to marijuana when it comes to the workplace.
The MCA allows “qualifying patients” with certain medical conditions to purchase cannabis from state-licensed dispensaries When it comes to employers, the MCA, like most legislation in other states, makes it unlawful for an employer to discriminate against an “individual” based on his or her past or present status as a “qualifying patient.”
In an effort to clarify the obligations and restrictions on employers, Arkansas recently amended the MCA. Some of the more significant changes include:
• The MCA now only applies to employers with nine or more employees (employers with 8 or less are not subject to the MCA’s anti-discrimination provisions).
• The anti-discrimination provisions now apply only to “applicants” and “employees,” not all “individuals.”
• An employer now cannot be sued under the MCA in the following circumstances:
– if he or she is acting in accordance with a drug-free workplace program or policy
– if he or she is acting on a good faith belief the marijuana was possessed or used on the premises of the employer or during hours of employment.
– if her or she is acting on a good faith belief that the employee or applicant was under the influence of marijuana while on the premises of the employer or during hours of employment.
– if excluding or removing an employee or applicant from a “safety sensitive position” based on the employer’s good faith belief that he or she was engaged in the current use of marijuana.
• The MCA has a one year statute of limitations.
• Damages under the MCA are statutorily capped.
• Individuals, such as managers or supervisors, cannot be individually sued under the MCA.
Employer Takeaway: Employers should update their written policies and implement new practices if operating in a state with a medical marijuana law. Drug testing policies and procedures should also be reviewed and updated and “safety-sensitive” positions should be identified, along with written job descriptions for them.
Recent court cases in Rhode Island and Massachusetts demonstrate that employers need to consider human resource and legal issues surrounding both applicants and employees who use medical marijuana. These cases not only complicate matters for employers who conduct drug testing for drug-free workplaces, but also create difficulty in reconciling their own safety policies with the courts’ decisions. With these decisions, an employer’s independent right to hire and fire become increasingly complicated when it comes to cannabis use.
Maintaining a safe and productive workplace is paramount for employers, and pre-employment and ongoing drug testing is key. However, tests for marijuana do not measure current impairment, making it nearly impossible for an employer to ensure a safe workplace. Some states significantly restrict the circumstances under which employers can drug test employees. As such, employers are increasingly finding themselves with no effective way to guard against impaired medical marijuana users and to protect not only that employee, but also those working with them.
In Rhode Island, a Superior Court Judge recently ruled on summary judgment that an employer violated the state’s medical marijuana statute when they refused to hire an applicant based on her use of medical marijuana. Callaghan v. Darlington Fabrics, C.A. No. P.C. 2014-5680 (May 23, 2017). The applicant disclosed to her prospective employer, Darlington, when she was applying for an internship that she was a medical marijuana cardholder and current user. She said she would likely fail the required drug test but would not use the substance on property. Darlington chose not to offer employment, stating that passing the drug test is a mandatory condition of employment since they have a drug-free workplace. The applicant sued under the Hawkins-Slater Act (Rhode Island Medical Marijuana Law) and the Rhode Island Civil Rights Act (RICRA).
The judge found that Darlington’s refusal to hire violated the Hawkin-Slater Act’s prohibition against refusing to “employ . . . a person solely for his or her status as a cardholder.” This finding differed from other recent opinions in which courts have rejected claims that refusing to hire a medical marijuana user constitutes disability discrimination. The judge rejected Darlington’s claim that RICRA excuses an employer from having to reasonably accommodate an applicant currently engaged in the illegal use of drugs as defined by federal law, and that they are not required to accommodate the use of medical marijuana among workers.
Other judges may interpret this situation differently and there is a chance that the Supreme Court of Rhode Island could overrule this decision. In the meantime, Rhode Island employers need to be aware of potential legal issues that can arise when dealing with applicants and employees using medical marijuana.
The Massachusetts Supreme Judicial Court recently heard oral arguments in Barbuto v. Advantage Sales & Marketing LLC et all, a case that questions an employer’s obligation to make accommodations for an employee’s off-site use of marijuana for medical purposes under the Massachusetts Anti-Discrimination and Medical Marijuana statutes.
The employee in the case started a new job and explained her use of marijuana in treatment of Crohn’s Disease to her new employer when asked to submit to a drug test. She was terminated the following day after failing the test. In making its decision, the employer reasoned that they follow federal law under which marijuana, for any use, is illegal, rather than state law.
The employee then sued alleging violations of the Massachusetts Anti-Discrimination law and the state Medical Marijuana law, as well as alleging claims of invasion of privacy and violation of public policy. The trial court dismissed all claims, other than her invasion of privacy claim and the employee appealed.
The employee argued that she “should not be faced with the cruel choice of treating her disability or earning a livelihood.” The Massachusetts Commission Against Discrimination (MCAD) also filed a brief arguing that the Medical Marijuana statute is meant to be liberally construed in order to promote equal opportunities in employment. This could have an impact on the outcome, as the court has traditionally given a significant amount of weight to the opinions of the MCAD.
On the other hand, the employer in the case argues that they should be able to take steps, including termination, to ensure a drug-free workplace, especially since, under federal law, marijuana for any use is against the law.
The current law in Massachusetts, while specifically not requiring employers to accommodate for on-site use of marijuana for medical purposes, is silent as to an employee’s off-site use of the drug. As such, the decision in this case should clarify an employer’s obligation, if any, moving forward in these circumstances. A decision is expected in the coming months. For additional information, download the parties’ briefs.
The coming months should reveal whether these cases in Rhode Island and Massachusetts courts will impact employers rights to a drug-free workplace and whether other states will follow. In the interim, employers should review all of their policies and procedures with regard to drug testing, hiring and termination. They should also keep informed of any additional rulings and cases on this matter. One thing is certain – the issue of medical marijuana in the workplace is here to stay.
It’s understandable that the overwhelming shift in society toward a more lenient view of drug use can be construed as a sign that you should “get with the times” and abandon the rules that have kept your workplace safe for years. From the “greening” of America through the legalization of marijuana for medicinal or recreational purposes in many states, and governmental agency guidance that doubles as a thinly veiled threat, to the convergence of drug testing restrictions at various jurisdictional levels, it’s easy to believe that your drug testing program is just too much work.
The Occupational Safety and Health Administration (OSHA) published a final rule in the Federal Register last month titled “Improve Tracking of Workplace Injuries and Illnesses”, in which it is stated that “blanket post-injury drug testing could discourage employees from reporting work-related injuries or illnesses for fear of retaliation”. Perhaps you winced at the work involved with revising your policy to more subjectively apply post-accident testing rules. After reading the quote below, regarding how the courts interpret the application of state specific laws, no one could blame you for curling up under your desk and dreaming of a career where the hardest decision you’re required to make all day is what color umbrella should be used to decorate the mai tais.
“Both federal and state law in the area of employee and applicant drug testing continues to evolve. Earlier this year, the Eighth Circuit Court of Appeals ruled in the case of Olson v. Push, Inc. that Minnesota’s strict drug testing statute applied to a Wisconsin-based company that hired (and tested) an applicant in Minnesota to work in West Virginia. Specifically, the court held that the Minnesota law applies to any company “doing business in Minnesota.” Multi-state employers need to look carefully at where they are testing applicants to make sure they are in compliance with local and state drug testing laws.” — V. John Ella, Attorney & MSBA Certified Specialist in Labor and Employment Law at TREPANIER MACGILLIS BATTINA P.A.
Without a doubt, there is some work involved in order to keep your drug testing policy and procedures in step with current laws, but there is also plenty of evidence available that points to why it’s worth it. In the Substance Abuse and Mental Health Services Administration’s (SAMHSA) publication “Behavioral Health Trends in the United States: Results from the 2014 National Survey on Drug Use and Health”, it was reported that were an estimated 27 million illicit drug users in 2014. Twenty-two percent of the survey respondents aged 18-25 and 8.3% of those over 26 years of age admitted to using illicit drugs during the previous month. Of the respondents 18 years of age and older, 10.6% of those with full time employment and 13.2% with part time employment reported to using illicit drugs in the previous month. Additionally, according to the Quest Diagnostics Drug Testing Index (DTI), the positivity rate for nearly 6.6 million urine drug tests increased overall by 9.3% from 2013 to 2014. In states such as Colorado and Washington, where recreational marijuana use was legalized in 2012, positivity rates for marijuana between 2012 and 2013 increased 20% and 23% respectively. In 2014, urine test positivity rose by 9.1% for cocaine, 7.2% for amphetamines, and 21.4% for methamphetamines. In oral fluid tests, the methamphetamine positivity rate rose 37.5%. It is clear that, without drug testing, your business can be at risk. In fact, the US Department of Labor has reported statistics about drug users and the toll they can have on the workplace. Your employees who use drugs are:
- 2.2 times more likely to request early dismissal or time off
- 3 times more likely to be late for work
- 2.5 times more likely to be absent for 8 or more days each year
- 3.6 times more likely to be involved in an accident at work
- 5 times more likely to file a worker’s compensation claim
When considering the risk these statistics pose to workplace safety, business reputation, and your bottom line, the effort involved with periodically reviewing your drug testing policies and procedures is fairly insignificant. Hire Image always recommends, first and foremost, that you consult with your employment attorney to ensure your program meets or exceeds the requirements of your industry, as well as the laws within the jurisdictions that govern your business practices.
To help kick off your policy review, Hire Image, in partnership with TREPANIER MACGILLIS BATTINA P.A. is offering a FREE webinar on Wednesday, June 15th – “States With Unique Drug Testing Laws: What You Need to Know to Avoid Liability” . During this 1 hour presentation, we’ll look at several state and local laws that have requirements reaching well beyond their borders, industry specific requirements, the future of drug testing, and much more. The webinar is pre-approved for 1 HR (general) re-certification credit through HRCI and is valid for 1 PDC for the SHRM-CP and SHRM-SCP.