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The United States is in a constant state of development regarding the legalities surrounding marijuana use. Not only are states legalizing the use of recreational marijuana, but in some cases, they are also making it more challenging to test for marijuana.
In July 2021, ClearStar hosted a webinar focused on the most compelling reasons why employers should continue testing for marijuana. After all, testing for marijuana remains legal in all 50 states though some conditions may apply depending on the state. It is important for employers to realize that marijuana use is up, positive test results have increased, especially in states that have legalized the recreational use of pot, and marijuana-related traffic accidents and fatalities have also increased.
ClearStar, a leading provider of employee screening services, including drug testing, is uniquely qualified to keep you up to date on all the new developments surrounding drug testing and marijuana laws in the United States.
Here are some of the significant developments over the past few months since our last update in July, as well as how we are prepared to keep you in the know as new developments arise.
Clearinghouse Report Updates
On September 28th, 2019, the new Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Clearinghouse began recording positive drug and alcohol tests within the commercial driving industry. Since the Clearinghouse regulations went into effect, there has been a significant increase in the number of positive test results, especially for marijuana. On June 1, 2021, ClearStar provided the following summary:
“As of June 1, 2021, the total number of CDL holders registered with Clearinghouse is 2,051,946 drivers. From January to December 2020, there were 54,706 drug violations and 1,185 alcohol violations reported to Clearinghouse, including positive drug tests, drug test refusals, and actual knowledge of a drug violation. However, within the first three months of 2021, 14,324 drug violations and 367 alcohol violations were reported. At that rate, there will be more violations during 2021 than in 2020.[1]
“From January 6, 2020, to January 6, 2021, of the total positive drug tests (80,098), half involved marijuana metabolites (42,534). The second most recorded drug detected was cocaine metabolite (11,297).”
ClearStar’s report also explained the reason for the increase in positive drug tests: “Although marijuana is a Schedule I drug at the federal level, medical marijuana use is legal in 37 states, and recreational marijuana is legal in 18 states and Washington D.C. With the rising increase of legalized and decriminalized marijuana, the general use has also increased, along with the rise in positive drug tests in commercial drivers.”
ClearStar not only wants to keep you updated on Clearinghouse reports and trends in positive marijuana tests, but we also want to keep you informed on why there is an increase in usage and how it could negatively impact your business.
Legalization and Liability
Following Amazon’s public decision to cease non-DOT mandated pre-employment testing for marijuana, ClearStar published a blog detailing why Amazon made that decision, how marijuana use specifically affects commercial driving companies and the legal reasons why companies should continue regular drug testing for marijuana.
Amazon announced at the beginning of June 2021 that it would no longer continue testing for marijuana in its comprehensive drug screening program for positions that are not regulated by the Department of Transportation. Although this may increase the company’s prospective worker pool by up to 30%, it is probably not a safe policy decision for delivery drivers, and it is not sending the right message to other companies.
There is a common misconception that marijuana does not impede a driver’s ability to drive safely; however, the National Institute on Drug Abuse (NIDA) — the lead federal agency supporting scientific research on drug use and its consequences — reports that “marijuana significantly impairs judgment, motor coordination, and reaction time, and studies have found a direct relationship between blood THC concentration and impaired driving ability.” This is among the reasons why the federal government (and some state governments) requires employers to maintain a “drug-free” work environment, especially for those involved with commercial or public transportation. Companies that fail to drug test candidates and employees for marijuana create a less safe work environment that places employees, customers, and the general public at risk. Still, they also are increasing their exposure to legal liability and face possible fines and penalties imposed by these government agencies.
ClearStar wants to make sure everyone is aware of the legal ramifications of neglecting to maintain a drug-free work environment. This involves keeping our clients up to date on which states are legalizing the use of marijuana, which states restrict marijuana drug testing and to what extent, and the liabilities a company may face if an employee causes or is involved in a drug-related accident.
New York Bans Drug Testing
The New York Department of Labor (DOL) recently published new guidance to answer questions about the Marijuana Regulation and Taxation Act (MRTA). In the guidance — “Adult-Use Cannabis and The Workplace — New York Labor Law 201-D” — the DOL answers questions about drug testing. It describes situations when an employer can legally take action against employees for using marijuana. ClearStar recently published a blog about the new guidelines and how employers can protect their companies even in states that don’t allow drug testing.
Without drug testing, keeping a workplace drug-free can be difficult, especially with the rise in marijuana legalization. However, employers can still take employment action or prohibit employee conduct in certain situations, such as if the employer would lose a federal construct or funding by not testing for marijuana. New York employers may also act when an employee is suspected of being impaired by marijuana, such as showing a decrease in performance of duties or putting other workers at risk of injury.
Although the DOL guidance states that “a test for cannabis usage cannot serve as a basis for an employer’s conclusion that an employee was impaired by the use of cannabis, since such tests do not currently demonstrate impairment,” ClearStar wants to ensure our clients are aware of what can be used as an impairment conclusion. We also want to ensure our clients know the signs of drug-induced impairment and what they can legally do to keep their employees and company safe from drug abuse.
Keeping our Clients Informed
ClearStar knows that the ongoing developments of marijuana legalization and how it impacts the workplace can be a rapidly changing headline, making it difficult to decipher the dos and don’ts of drug testing. We strive to provide updated and accurate information as quickly as possible to our clients because the information can directly affect the success of a company’s drug-free workplace program.
Our weekly Industry Insights blog updates are written by well-informed individuals and backed up with research, often directly from government documents and statements relating to the most important news that directly impacts our clients. Additionally, we offer more personalized advice to our clients who call or contact us with questions about drug testing and staffing.
ClearStar and Drug Testing
ClearStar goes over and beyond to ensure our clients have everything they need to be FMCSA/DOT-compliant. During the pre-employment phase, ClearStar offers full DOT support, including access to the FMCSA Clearinghouse database and a web-based management system that assists with carrying out any potential employee’s background check. With our resources, not only can we perform extensive background checks on candidates, but we can also alert a client of any past DOT violations, DUIs, and drug/alcohol test results.
We have an extensive drug test collection site network with 9,000+ locations nationally and offer a wide variety of drug test options, vaccinations, titers, physicals, and other services. We work with Abbott, LabCorp, and Quest to provide the best drug testing services and a mobile wallet pass with built-in reminders for LabCorp and Quest. For our clients’ peace of mind, we offer real-time collection status updates for drug tests to ensure they know exactly what the status is on each drug test.
To place an order for a COVID-19 test or a drug test, contact the ClearStar Medical Information Services office at 321.821.3383 or [email protected]. To ask about background checks and other medical screening services, call +1.888.982.4648.
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Portions of this report were provided by the Current Consulting Group, © 2010-2021 The Current Consulting Group, LLC – No portion of this article may be reproduced, retransmitted, posted on a website, or used in any manner without the written consent of the Current Consulting Group, LLC. When permission is granted to reproduce this article in any way, full attribution to the author and copyright holder is required.
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Todd Shoulberg - President, Medical Information Services
Todd Shoulberg provides direction and leadership to the daily operations of ClearStar’s Medical Review Office. He is responsible for keeping all drug testing clients in compliance with state, federal, and local regulations, and identifies new testing methods and products for clients to utilize in their drug testing programs. Before joining ClearStar, Todd served as Vice President of Florida Drug Screening, Inc., where he oversaw operations of the Medical Review Office, including Sales, Marketing, and Customer Service.
At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.
