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Make sure your substance abuse policies are up-to-date

May 29, 2018

By Michael Burns, courtesy of SBAM Approved Partner ASE

It is recommended employers (and their HR professionals) check their substance abuse policies to ensure they are up to date given some ongoing regulatory and judicial developments. Three developing substance abuse areas Michigan employers need to be aware of are: 
 

  1. Despite the adoption of medical marijuana laws in Michigan (MCL 333.26421 to 333.26430 (2008) and other states, employees in Michigan that use marijuana are not protected and may still be terminated from employment or not hired if they test positive for its use. 
  2. In December of 2016 the federal Occupational Safety and Health Agency stated employers should not have policies that mandate automatic post-accident drug testing.
  3. Due to a tight labor market and changing state laws and perceptions on marijuana use, some employers are loosening drug testing practices to no longer test for that drug.

Bottom line – Marijuana is still designated a federal Class 1 narcotic, and unlike many states the federal government doesn’t look to change its position on that anytime soon. Michigan has a medical marijuana law that recognizes the “legal” use of marijuana if under a prescription. However, the medical marijuana license does not protect workers if they test positive and the employer fires them. With marijuana testing the results do not measure “being under the influence.” It tests for a metabolite in the blood indicating marijuana use occurred in the past (generally up to 3 weeks). A hair follicle test can detect marijuana use for three months or more. Testing positive for marijuana does not necessarily mean the worker was high when on the job.

Currently, 25 states have legalized the use of marijuana.

If an employer wishes to avoid disqualifying an applicant or firing a current employee that tests positive for marijuana but still wants to protect their workplace against the risks associated with marijuana use, the employer’s policy will have to state so. A policy stating employees shall not report to work under the influence of drugs and alcohol may allow for acccepting an employee that uses marijuana but comes to work “clear headed.”

In December of 2016 the Occupational Safety and Health Agency (OSHA) issued a new rule that prohibits employers from retaliating against employees that report injuries or illnesses. OSHA posited that a mandatory post-accident drug test policy could inhibit employees from reporting an injury or illness.  To clarify, this OSHA rule does not prohibit employers from drug testing if a reasonable possibility exists that drug use could have caused the accident. 

Quest Diagnostics, a national drug testing organization publishes the following regarding this regulation:

Key Points for OSHA-Regulated Employers
 

  • Employers can and should continue to use post-accident drug screening.
  • OSHA will not and cannot issue citations for drug testing required under a mandatory state law, a voluntary drug free workplace law, or a federally-regulated program.
  • The OSHA regulation requires a “reasonable basis” for employers to perform a post-accident drug test and applies solely to post-accident tests.

 
To verify a drug test is meant for OSHA-regulated, post-accident testing, consider the following factors: 
 

  • Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore that the result of the drug test could provide insight into why the injury or illness occurred)
  • Whether other employees involved in the incident that caused the injury or illness were also drug tested
  • Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardous nature of the work being performed when the injury or illness occurred

And now comes another twist for employers – a zero tolerance policy that screens out marijuana (and other substance abuse) users who would otherwise be an acceptable employee may no longer be practical in a labor market that is so tight.
 
Marijuana use is increasing significantly. Quest Diagnostics reported that positive marijuana tests increased 75% from 5.1% in 2013 to 8.9% in 2016 throughout the general workforce. 
 
While some employers are dropping drug testing policies altogether in favor of finding skilled workers, it is risky. ASE’s 2017/2018 Michigan Policies and Benefits Survey reports that on average over 67% of employers continue to do pre-employment drug testing.

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