We’re Over Halfway Through 2022 – What’s Happened?

By Katherine Miller, CAPM, Senior Director of Compliance Services at Current Consulting Group (CCG) This information is provided for educational purposes only. Reader retains full responsibility for the use of the information contained herein. 2022 has already been an eventful year, and it’s likely that even more will happen before we ring in 2023. This article will give a brief overview of major changes we’ve seen so far this year in the workplace drug and alcohol testing industry. DOT Issues Proposed Rulemaking on Oral Fluid Drug Testing In February 2022 the Department of Transportation (DOT) issued a proposed rulemaking to include lab-based oral fluid as an option in DOT-regulated situations. The Notice of Proposed Rulemaking (NPRM) is designed to offer more versatility and flexibility to DOT drug testing by offering employers the option of urine or oral fluid depending on the situation. The NPRM consisted of two main parts – a background section providing information on why the update is being proposed and a section with the proposed verbiage for the new regulations. The NPRM highlights that oral fluid reduces drug test adulteration due to its observed collections, provides cost savings, and has simple collection requirements. The proposed verbiage and accompanying questions cover such topics as:

• Collection procedures,
• Cost savings,
• Drug detection windows,
• Laboratory processes,
• Medical Review Officer (MRO) procedures,
• Oral fluid general guidelines,
• Regulatory organizational scheme,
• Substance Abuse Professional (SAP) procedures,
• Specimen costs,
• Testing circumstances,
• Urine testing general guidelines,
• And more.

It is important to note that oral fluid is still currently prohibited in DOT-regulated situations. Following the review of all comments that were submitted during the comment period, DOT will issue final guidelines, which will include an implementation period, after which lab-based oral fluid testing will be permitted in DOT situations. Medical Cannabis Continues Its Expansion In February 2022 Mississippi (re)legalized medical cannabis. You may recall that medical cannabis was legalized in the state initially in November 2020 via ballot initiative; however, in spring 2021 the state Supreme Court ruled the initiative unconstitutional. Legislators passed SB 2095 (the Act) in early February, re-legalizing medical cannabis in the state. The Act was immediately effective, although cannabis is currently not yet available to state residents. Mississippi employers are not required to accommodate medical cannabis in the workplace, modify the job of a medical cannabis using employee, or reimburse medical cannabis costs. Employers are not prohibited from taking adverse employment action against an individual because of their medical cannabis use, establishing/enforcing drug testing policies, or disciplining employees for ingesting medical cannabis in the workplace or working while under the influence of medical cannabis. Additionally, the Act contains specific guidelines for employers pertaining to workplace injuries and the use of medical cannabis. Employers in the state should immediately review their policies to ensure that they are up to date regarding the Act. Additionally, a number of states amended their existing medical cannabis programs. The District of Columbia, for example, amended its existing program to allow individuals 65 years and older to self-certify that they are using cannabis for medical purposes. Louisiana passed a law prohibiting public employers from subjecting employees or applicants to negative employment consequences based solely on a positive drug test for cannabis, cannabis components, or cannabis metabolites if the individual has been clinically diagnosed as suffering from a debilitating medical condition and a licensed physician has recommended cannabis for therapeutic use by the individual in accordance with state law. South Dakota amended its medical cannabis law, adding definitions for such terms as “safety-sensitive job” and “under the influence of cannabis.” Additionally, the state passed a law stating that private health insurers, workers’ compensation insurance carriers, and self-insured employers providing workers’ compensation benefits are not required to reimburse a person for costs associated with the use of medical cannabis. Utah passed a law that says state or political subdivision employees who are valid medical cannabis users are not subject to retaliatory action for failing a drug test due to marijuana or tetrahydrocannabinol without evidence that the employee was impaired or otherwise adversely impacted in their job performance due to the use of medical cannabis. Additionally, the state or a political subdivision must treat an employee’s status as a medical cannabis cardholder or an employee’s medical cannabis recommendation in the same way they treat an employee’s prescriptions for any prescribed controlled substance. New Hampshire, Ohio, Tennessee, and Utah expanded their existing medical cannabis programs, adding more qualifying conditions. Recreational Cannabis Gains (Even More) Traction In May 2022 Rhode Island legalized recreational cannabis through The Rhode Island Cannabis Act (the Act). Residents were immediately permitted to grow up to six plants at a time at home. Generally, employers are not required to accommodate the use of cannabis in the workplace or while at work. Employers can have policies prohibiting the use/possession of cannabis in the workplace or working while under the influence of cannabis and can take adverse employment action because of the violation of a workplace policy or working while under the influence of cannabis. Rhode Island employers generally cannot fire or discipline an employee solely based on the individual’s private use of cannabis outside of the workplace if the employee does not work while under the influence of cannabis. This does not apply in certain situations. If the employee is in a safety-sensitive position (as defined in the Act), the employer may adopt and implement a policy prohibiting the use of cannabis within 24-hours prior to a scheduled work shift or assignment. Maryland passed a constitutional amendment legalizing recreational cannabis for individuals aged 21 and older. The amendment makes no mention of employers or workplace drug testing and must be ratified by voters in the November 2022 election. Other Changes Are Still on the Table Although cannabis remains the “hot button” topic for legislation that impacts workplace drug and alcohol testing, other legislation has passed this year that employers should be aware of. Colorado passed legislation regulating processing and sales of kratom, a drug that has slowly been increasing in popularity over the past few years. Delaware passed a bill amending drug and alcohol testing requirements for applicants to and employees of the Department of Services for Children, Youth, and their Families (DSCYF). Georgia passed a bill subjecting all firefighters to random drug testing at least biannually for the first two years of licensure. This also applies to individuals licensed as emergency medical services personnel, paramedics, or cardiac technicians convicted of a felony more than five but less than ten years prior to licensure. Conclusion With 2022 just over halfway over, already a myriad of changes have occurred, and it’s likely that even more will change prior to 2023. Employers need to stay up to date on goings on in their state(s) of operation as well as review and update their drug-free workplace policies regularly or risk noncompliance. Keeping track of ever-changing laws and requirements, especially across multiple states, can be confusing at best. Want to access all the information you need in one easy spot? Check out Current Compliance, the industry’s only state law database. © 2010-2022 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.

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.