Can a drug screening policy keep a company out of legal hot water? What should be included in such a policy in order to ensure a company – and its employees – are protected from lawsuits or harm?
All human resource policies are created to protect employees and companies from unsafe and discriminatory actions, and to keep the workplace fair. Let’s face it: having something in writing to refer to when an employee misbehaves or steps out of line helps HR managers and employers hold the employee accountable. Having a written guideline for employees regarding rules, regulations, and ethical or compliance standards provides a framework for enforcement, and inherently can be the most basic foundation for protecting a company should a lawsuit arise. (more…)
If you’ve been contemplating whether a drug screening program is the right choice for your company, the results of a recent study by Quest Diagnostics may help in your decision making process.
Analysis of the Quest Diagnostics Drug Testing Index (DTI) revealed that the percentage of American workers testing positive for drugs such as marijuana, cocaine, and methamphetamine has increased for the second consecutive year. 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.
It might be easy to focus solely on positive marijuana results given its place atop the list of most commonly abused illicit drugs and constant presence in the news with more states looking to legalize or decriminalize it, but the Quest study shows that positivity rates for other drugs are increasing as well. For example, last year 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%.
Given these disturbing upward trends of illegal drug use, you’re probably ready to start drug testing today! Here are a few questions to answer in order to get your program off to the right start: (more…)
On Monday, April 13, 2015, the Office of the Secretary of Transportation (OST), U.S. Department of Transportation published a final rule amending regulations in 49 CFR Part 40 – Procedures for Transportation Workplace Drug and Alcohol Testing Programs. The rule allows use of electronic chain of custody and control forms (CCF) for DOT urine drug testing.
The CCF identifies a urine specimen and documents its handling. The current paper CCF is a 5-part carbonless form which provides a copy to the donor, employer, collector, MRO and the test facility. Mandated for DOT drug testing, the CCF is burdensome when compared to modern electronic CCF’s. With the amendment to the regulation, Department of Health and Human Services (HHS)-certified laboratories can become approved through the Substance Abuse and Mental Health Services Administration’s (SAMHSA) National Laboratory Certification Program (NLCP) to use e-CCFs.
HHS-certified labs wishing to use the eCCFs must provide a detailed plan and propose standard operating procedures for SAMHSA to review and approve. Once the eCCF process is approved, the lab may use the eCCF for DOT drug testing, as well as the Federal Workplace Drug Testing Program. The employer must also ensure that security and confidentiality concerns are addressed, and will be required to follow eCCF procedures approved by SAMHSA. More information is available in the regulation, which can be found at this link: http://www.gpo.gov/fdsys/pkg/FR-2015-04-13/pdf/2015-08256.pdf
Our laboratories already have electronic chain of custody forms for all other drug tests and will submit for approval from SAMHSA for DOT purposes. Hire Image will keep you updated as eCCF becomes available.
Although marijuana remains illegal on the federal level, many states and the District of Columbia have enacted laws allowing the use of the drug for recreational and medical purposes. As of July 2015, eighteen states plus D.C. have decriminalized the possession of marijuana in small amounts for personal use.
For employers trying to navigate the murky legal waters of pot possession and use by employees, these laws pose a challenge. Cases thus far have been favorable to employers with courts siding with employers when it comes to wrongful termination lawsuits surrounding decriminalization, legalization and medical legalization. Although rulings have been favorable for employers, we continue to see new lawsuits and must wait to see how they are decided. The legalization of medical marijuana does not affect your right to maintain a drug free workplace. Workers can still be terminated for violating a company’s drug policy, whether the drug of choice is pot, alcohol, or another legal or illegal drug. Drug screening policies already in place may not necessarily need to be adjusted or changed. Understanding the different classifications of marijuana legalization and knowing the laws in the state (or states) in which you do business are the first steps in developing an informed workplace drug policy.
Following is a brief summary of the three different classifications of marijuana:
The decriminalization of marijuana is not the same as the legalization of marijuana, though the two are often confused. Decriminalization means that criminal penalties for small amounts of marijuana possession have been abolished, though are still punishable by fine. In other words, if a person is caught with a small amount of marijuana for personal use, he or she won’t be prosecuted or receive a jail sentence that will go on a criminal record. Instead, he or she may receive a ticket and a fine, much like that associated with minor traffic violations. If a person is in possession of more than the amount outlined in state law, that person can still be charged for distribution and be subject to both fines and prison and a permanent mark on a criminal record.
Medical Marijuana Legalization:
Many states have adopted medical marijuana laws that allow qualifying patients with debilitating medical conditions to use marijuana when prescribed by a doctor. State laws vary in terms of the amount prescribed, duration of treatment, and the patient’s permission to grow their own cannabis plants. Medical marijuana legalization has opened the door for the creation of medical marijuana dispensaries to supply patients with the marijuana prescribed to them.
Recreational Marijuana Legalization:
So far, Colorado, Washington, Alaska, and Oregon are the only states to have legalized marijuana, as well as Washington, D.C. Legalization means that marijuana users – all who must be over the age of 21 – cannot be arrested, ticketed or convicted of a crime for smoking or ingesting marijuana, if done so within the scope of the law. Similar to laws about alcohol consumption, the scope of legal marijuana use involves age, location, and amount consumed.
Click here to find out what the marijuana laws are in your state.
Criminals found in the workplace, sweeping changes in legislation regarding medical marijuana, high-profile cases of resume fraud, and increased number of class action lawsuits against businesses for non-compliance with employment laws — it’s no wonder so many employers realized the importance of professional background screening in 2014. (more…)
The process of hiring a new employee can be a lengthy and arduous task. It’s no wonder that after combing through hundreds of resumes, conducting dozens of interviews, and asking all the right questions to find the one perfect candidate for the job, human resource professionals breathe a sigh of relief when their background screening and verification report comes back ‘clear.’
A thorough pre-employment background screening, drug test, and verifications of education and employment can provide the peace of mind an employer needs to ensure their newest team member is a qualified individual with upstanding morals and a good character. But is that where such screening should end…. at the beginning? How do you know if your employee has remained a law-abiding citizen three or four years later? The only way to be find out if your employees have remained on the right side of the law is to continue screening them.
Recently, one of Hire Image’s clients experienced the unpleasant repercussions of hiring someone with a criminal history without having a continued background screening policy in place. The company hired a new controller in 2011 after performing a background check and finding out that he had a criminal history.
Efforts to give him a second chance came to an unfortunate conclusion in 2014, when it was discovered that he had embezzled tens of thousands of dollars from the company. It was also discovered that he was arrested on charges including possession of child pornography, receiving stolen goods greater than $1500, and tampering with a motor vehicle after he was hired. Had his employer performed regular or even periodic background screenings, criminal records would have been revealed, prompting a decision to reconsider his employment – perhaps preventing additional financial loss. Establishing a policy for ongoing screening of employees is a highly effective way for employers to have the most up to date knowledge about their employees.
Earlier this year, the Washington D.C. fire department experienced firsthand the need to continue screening employees. Previously, the fire department performed an initial background check on applicants, and relied on employees to self-report any arrests that occurred after they had been hired. In January, Fire Chief Kenneth Ellerbe issued a special order notifying employees that they had 10 days to report any arrests or driving revocations in the past three years or they would face termination. It was revealed that there were 14 employee arrests between October 2013 and January 2014 for charges including drunk driving, illegally carrying a firearm, drug possession, and arson. Had the Chief not issued that notice, it is likely that those arrests would never have been brought to the administration’s attention. It is important for all employers to continue screening their employees, and particularly crucial for safety sensitive positions. A firefighter with a second-degree arson charge is unacceptable and, unfortunately, employers cannot rely on employees to self-disclose this type of information. Performing annual screenings on employees helps maintain a safe working environment.
Another aspect of continued screening is drug testing. Although several industries have mandatory drug screening rules, such as drivers regulated by the Department of Transportation, employers not required to perform ongoing drug screenings may want to consider implementing a process to do so. Each state has different laws in place in regards to drug testing. Be sure to be aware of the laws in your state.
Ongoing checks of employees’ driving records should also be considered. One of the firefighters arrested in Washington D.C. was arrested for drunk driving and illegally carrying a firearm in his car. This would be vital information for an employer, particularly for employees in safety sensitive positions. If an employee is driving a company vehicle or drives as a condition of employment it may be wise to review their driving record annually.
Employers should develop policies before implementing any post-hire screening process. We recommend an employment attorney review any such policies before executing post-hire screening. Understanding how negative information will be used beforehand will help employers remain in compliance while maintaining a fair working environment.
Although human resource personnel work diligently to hire the most qualified job applicants, it is impossible to predict human behavior. Someone who may have had a spotless criminal record when they were hired could experience some hardships later that might lead them to participate in criminal activity. The only way to truly know for sure is to develop a continued screening policy. A professional background screening company such as Hire Image can help you create a continued screening program that will keep you better informed about your employees and help promote a safer workplace for all.