VANNOY:
Drug testing, what employers need to know. So this is this is a changing topic. You know, I remember when I was first becoming a supervisor, you know, many, many years ago the company I worked for, we did drug testing that was just a standard part of, of onboarding. But for a whole bunch of reasons, I think culturally and legally fewer and fewer companies do that today in, in making it more complex is the ever changing fabric of, I, you know, just hit on the head mar legalization of marijuana. Right? So, still, I illegal at the federal level legal in many states, but it’s kind of a patchwork of, of laws that no state is like the other one. Exactly. So this is a really complex issue for employers and it’s really important to know what you can do, what you can’t do, and maybe just some practical advice what you should do.
So if you’re a regular watcher of the show, great guest to unpack this for me today. Brian Schenker he’s an attorney at the Long Island New York office of Jackson Lewis. Brian’s practice focuses on representing employers in a wide range of workplace matters, as well as preventative advice and counseling. Brian has extensive experience defending class action and collective action lawsuits under federal and state wage and hour laws. He has successfully defended wage and hour audits conducted by the US and New York State Departments of Labor, and Brian regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment and retaliation. Brian, welcome back to the show.
SHENKER:
Thanks for having me, Mike. And yeah, it’s a great topic. Again, today, you know, a lot, as you mentioned, lots of stuff going on here. Not always so clear cut, but we’re gonna do our best to unpack it today.
VANNOY:
So, so let’s start with something that might just sound like the captain obvious question, but I really do think it’s important to clarify what it is we’re talking about. You know, what is an a pre-employment drug test?
SHENKER:
Sure. So, you know, there, there are a number of different types of drug tests, right? Pre-Employment is a very common one where, you know, basically before you know, the employee starts and we’re talking about you know, generally post offer someone that’s going to be tested for certain drugs. And, you know, again, you know, depending on what may they may test positive for or not you know, the, the company can take you know, certain actions. We’ll also discuss, you know, other types of testing today, like, you know, reasonable suspicion or post-accident or, or random drug tests. And, you know, there’s similar you know, things to, you know, concerns and, and restrictions that, that we’ll discuss. But really a as it relates to pre-employment it really must follow a conditional offer of employment, right? This isn’t something that you’re just having, you know, every applicant, you know, take a drug test. You know, it, it’s something where someone who the company makes an offer to will then be, you know, given a drug test. You know, if we do it too early in the process, it could raise Americans with disability act considerations. So that’s why we want it later on in the process.
VANNOY:
Can you, can you say why? I’ll talk, I think I understand probably why, why, why would, why would inserting drug testing as part of your filtering and screening process potentially put you up to be in violation of ada?
SHENKER:
Right. So, I, I think there are probably two big reasons you know, that we’re going to avoid that. In terms of the ada, right? We, we don’t want it to appear that any employment decision is being made you know, based on, on, you know, things like this. So, if we’re, you know, screening every applicant for, for, you know, these types of drugs, again, you know, that could raise issues that, you know, that look, you know, there’s some protections out there especially under the ADA for, you know, p who are being treated for, for instance, you know, alcoholism or other, you know, drug dependence. And so, you know, while the ADA might not permit, you know, drug use out on the job, you know, there might be reasons why someone could test positive and, you know, still be protected from, you know, an adverse action.
Now, aside from the ada, if we’re drug testing, you know, applicants, you know, before the offer stage, you can imagine, you know, that could get costly, right? We’re talking about, you know, a high number of drug tests, right? And again, you know, that’s gonna be both administratively and financially, you know, burdensome to a company. So, and I think another, you know, best practice, sorry, is just that, you know, employees really, you know, also, you know, even when we do this, we don’t want them to work, you know, before they, you know, we, we get the results, right? So, you know, it’s all a balancing act of when in the process to do it. Yeah. And so we find that, you know, post offer but before working is that sweet spot of, of when you would wanna do a pre-employment drug test.
VANNOY:
In, in, I think this feels kind of obvious, but I think probably important to clarify, and part of what, why this is the complex issue today is, you know, what, are there certain classes of drugs? I mean, nicotine is a drug, alcohol is a drug. They’re wide mainstream. You gotta be a certain age to buy them and consume them you know, cigarettes and, and, and beer, and wine, alcohol. But with, with the advent of legalization of marijuana, all of a sudden these waters get a little bit murkier. I think it’s pretty clear you know, maybe, maybe it’s okay to, to drug test for cocaine, for meth, for whatever. But can you put some rails around this for the types of things that’s okay to, to be drug testing for,
SHENKER:
Right? So I think you mentioned marijuana. We’ll, we’ll, we’ll dive into, you know, marijuana and testing for that, and cbd in a bit. There’s, you know, that that more than any other aspect of this is very much evolving at both the federal and state level. So we’ll jump into those. But yeah, I, I think for other types, I mean, look, if we look at at the federal level and the omnibus Transportation Employee Testing Act which applies to safety sensitive, you know, transportation employees in a number of different industries we can look to them that they test for, among other things, you know you know, cocaine, amphetamines, oi opioids pcp. So, you know, those are, you know, the main things that we’re looking at. But there are you know, a number of other, you know, there are, there are all sorts of other things that can be tested.
And, you know, we’ll also get into the use of, you know, a medical review officer, commonly called an M R O which is someone who, you know, the company should use. It’s a physician, you know, a doctor who would review the results of a drug test before they get to the company, and potentially go over the results, discuss any issues on the drug test with the employee or applicant because, you know, looking to the ada, right? There could be you know, legitimate reasons why someone tests positive for something, right? It could be as a result of a medication they’re on, right? And just as anything else, right, we’re not going to it’s not advisable to take action against someone because of, you know, something they’ve been prescribed by a doctor. Yeah. Or if we’re going to, we at least need to have, you know, the understanding of, you know, what’s going on there.
So yeah, and, and at the same time, they’re, they’re all different types of, you know, drug tests. There’s, you know, urine, hair, blood, you know, different things. And, you know, I, I don’t claim to be a you know, a medical professional, but, you know, there are, you know, might be reasons to, you know, look into some types of tests over others. And, and that’s all something that employer should look into before they actually start testing so that they have a policy, they know what the steps are for all this testing.
VANNOY:
So, so what, but my mind’s going all kinds of different directions to ask all kinds of edge questions. I think let’s, for sake of time and just practicality for why people probably are tuning in to, to watch or this or, or listen to this is, let’s maybe start with the center at the, at the basics here. What types of employers are actually required to, to perform drug tests? And then what I think is, I’m ASUREming is gonna be the majority of our audience, the next step would, you know, what, what are, what are the ring, the circle, the circle around that? Who would, who would we maybe recommend, or it’s okay to be doing drug testing, and then we can talk about the gotchas that everybody needs to be on the lookout for. So, so is there a center here where it’s actually required to drug test?
SHENKER:
Right? So, yes. So there, I, I mentioned earlier the omnibus transportation employee testing act. So this applies to safety sensitive employees in aviation, trucking railroad, mass transit you know, pipelines and, and other transportation industries. And while there are different agencies, you know, federal agencies that oversee the act as to each industry generally all of these types of workers you know, are, were, you know, should be, you know, tested for drugs and alcohol, if there’s reasonable cause or reasonable suspicion that the employee might be under the influence of drugs or alcohol while they’re on the job. So that, that’s one area. And then there’s certain requirements for them under the Omnibus Act, you know, there’s random drug testing that’s required. And there’s also, you know, in addition to the testing employers are supposed to give drug and alcohol awareness training to all employees.
And also supervisors are given training in how to spot substance abuse, right? How to detect it. Cuz again, when we’re dealing with safety sensitive employees, which this act focuses on, you know, that’s a key concern. And so there are other types of employees who are, you know, required to be drug tested, whether it, you know, falls under, you know, federal or state or even local laws you know, certain government positions. You can imagine you know, hospitals and healthcare construction type positions are sometimes required. You know, and, you know, even law enforcement sometimes, you know, private security. So there are a number of different industries, and you, you can kind of see what’s in common with these in that it’s either, you know, sensitive positions with respect to, you know, information or it’s safety issues. And so, you know, that that’s where we mainly see the requirements for
VANNOY:
Fascinating, Brian, it, that those, those feel like industries that, if I’m listening to this show today, it’s probably self-evident that I know that I do, that I am required. Is, is there a, an authoritative, authoritative source that people can go to, to see, okay, is my business actually by required by law?
SHENKER:
Yeah. So I, I think the, the omnibus you know, transportation employee act, that that’s the first place to start that that’s going to tell you. And, you know, if you have questions beyond that, then of course, I, I think, you know, speak to a professional like you know, an HR professional at ashore or an attorney if you have any doubt because if there are requirements and you are not testing, you know, there can be, you know, pretty there can be significant repercussions not to mention just the safety issues that could be caused to other workers. Okay. Now, you know, there are some other laws in this area that you know, I think there’s a common misconception by, you know, federal contractors, for instance that, you know, they’re required to drug test when that’s actually not the case.
So, you know, there’s the Federal Drug Free Workplace Act. This applies to federal contractors with contracts over a hundred thousand dollars, or who receive, you know, federal grant. And it doesn’t actually require drug testing. What it does require is establishment of a drug-free workplace. So that means, okay, a drug-free awareness program to educate employees about drug abuse, right? A drug-free po, a written policy and then, you know, a counseling and rehabilitation program for those who might need it. So again, it, it’s important to understand where your business falls in because yeah, as we’ll discuss later, there might be some restrictions and so on what drug testing can be done. And so simply saying, Hey, I’m a federal contractor. I’m required to do drug testing. That’s actually not necessarily the case. You know, there’s drug free requirements, but not necessarily testing.
Yeah. you know, similarly, the ada, you know, the Americans with Disability Act you know, does not require testing. But you know, you’ll, we’ll, we’ll be mentioning the ada a a lot today because as we go through these you know, drug testing issues there’s always the question of whether we’re discriminating against applicants or employees because of a disability. And while, you know, the ADA doesn’t necessarily it does not protect people who use drugs, you know, in the workplace or alcohol in the workplace it does protect employees who, for example, are, you know, recovering alcoholics or who, who, or those who have obtained you know, treatment for drug addiction. And so, you know, again, that’s why, as I mentioned before, use of an mro, a medical review officer, because there could be, you know, significant issues that, you know, just looking at a positive drug test result, you know, doesn’t, doesn’t indicate alone.
VANNOY:
All right. So, so we talked about some, so there are some types of employers that it is legally required, right? And they generally have to do with safety. What other types of industries are you seeing the tr maybe a trend or maybe just, just a recommendation if you’re, if you’re giving counsel to a business owner that, hey, they really should consider drug testing and, and, and maybe as if not important, more important, why would you make that recommendation?
SHENKER:
Yeah. So I think, look, you know, what are the main reasons that, that employers might conduct, conduct drug or alcohol testing? You know, the ones that I see are, you know, ensuring safety of the company’s own employees or customers or others on premises. So, you know, with respect to that, we’re looking at people in positions that have safety consequences, right? You know, heavy, you know, heavy equipment operators you know, warehouse roles, construction. And again, that goes right into the other issue of, you know, reducing the risk of injuries and damage to that equipment. You know, often, you know, but even outside of that, you know, look, there are many workers in offices, for instance, that have access to sensitive data, whether it’s financial data, you know, customer data things like that where we want to, you know, ensure that you know, we have, you know, people who are going to be trustworthy in these situations.
And again, you know, drug testing, you know, can also improve productivity and efficiency and morale, right? When we’re not dealing with, you know, the consequences of someone who might be under the influence. And, you know, again, I, I think what I’ve also seen is that companies that are upfront about drug testing, it might actually discourage applicants in the first place who are, you know, drug abusers from, you know, applying for positions. So there’s some deterrent effect there. So I think, you know, you know, look, it could be something that any company could use, whether, you know, you’re in that typical, you know, safety affecting, you know, roles and, you know, machinery, things like that. But you know, those companies with office employees, you know, it’s something so that, that they can consider too. And again, it could even have consequences of reducing turnover and, you know, the associated hiring costs. But, you know, in terms of initial considerations, right? I mean, the, the first question obviously is, are you required by law to conduct testing,
VANNOY:
Which we
SHENKER:
Discussed? And if there’s any question, right? An employer should seek advice on that. The next is, again, we, we can’t address all, you know, city and state laws, but, you know, are there any, you know, local laws regulating workplace drug testing? And then again, you know, companies, there’s positive sides to this too, right? You might be in a jurisdiction where having a drug and alcohol testing policy could you know, qualify the company for a worker’s compensation premium discount. Not to mention, you know, if there are accidents, if something does occur because of drug abuse on the job, but you have a program and a testing program that could potentially reduce the company’s liability because it’s something that’s been, you know, looked at and taken seriously. You know, nothing is a hundred percent fail proof. But it can, you know, have, you know, liability benefits, you know, for a company.
VANNOY:
Brian, one of the things you and I have talked about several times in the show, Mary and I are our mutual friend Mary Simmons as well. Part of the guidance here is, I, I, I think it, I dunno how to phrase it. It used to be much, I to say, socially acceptable to drug tests, because almost from a moral basis, right? It’s like, oh, drugs bad. We don’t want people who do drugs. Good. but now they’re, because there’s so much between, and I know we’re gonna jump into legalization of marijuana real quick here. But be because of the changing legal framework and a very clear long-term shift in legal protections of employees shifting away from protections of employees, that this, this has shifted a bit, right? And so I think, tell me if I got this right. Part part of our guidance here would be if there are good business safety reasons to drug test, by all means, you, you should do it and just be self-aware of the, of kind of the rails and, and set up wisely.
But just like all requirements of employment, the more you tie it to the actual job requirements and therefore a job description and tying back to your employee handbook, the firmer ground you are on, right? So if, if you’re hiring, so stepping out of the drug c contact for a second, if you are a bank and you need a Brink’s truck driver or a, a, you know, a, a, a truck driver to, to move money from bank to bank pick up cash from lo locations, it seems reasonable to me to have a requirement that you can’t have somebody with a bank felony on their record as a condition of employment, right? Even though you might live in a state that has laws prohibiting you from considering people’s criminal background as part. So as long as it’s tied to a good business reason for condition of employment, that I, I think maybe that’s the overarching thing we really want people to walk away with here, is, is that fair,
SHENKER:
E Exactly. Yeah. I think you hit the nail on the head, and I think that’s why you, you mentioned the shift, and I think there has been a shift away from pre-employment drug testing overall, but right. We’re, when we’re talking, we’re narrowing it down to the types of positions that, that it might be required for. And I think you know, then that leads me to just touch on the other types of, you know, drug testing that, that and alcohol testing that is out there. That, again, when we get into these, it, it does get into specific reasons, right? Yeah. that may be, you know, more realistic for a company to employ rather than, you know, pre-employment testing, such as, you know, reasonable suspicion drug testing, right? So this is, you know, you know, for cause or reasonable cause it’s sometimes called, and it’s generally permitted in all jurisdictions.
And basically, you know, with reasonable suspicion testing, and, you know, this might be an advantage of having this type of policy in existence. It’s not that we’re gonna test everyone, but, you know, if a supervisor manager has specific observations about, you know, the behavior of someone, right? Smell of alcohol on their breath, you know, slurred speech, unsteady movements things like that, you know, then, you know, we’re gonna document those. And that can lead to requiring, you know, a drug test because there’s specific you know, basis to do so. Yeah. you know, again, you know, I think another one that, that is employed, which can also avoid the ADA type issues of discrimination, like even reasonable suspicion, Ken, right? Someone can challenge that and say, you know, you’re picking on me for some inappropriate, you know, protected reason to test me. Whereas, you know, random drug testing is just, you know, you could use a computer program and that tells you on what day, you know, you’re going to be testing which employee.
And it’s entirely random. The company doesn’t, you know, control it other than including who’s gonna be in that pool of people tested. Yeah. and again, it, it makes it, number one, it’s an effective deterrent because it’s unpredictable. And the lack of the necessary suspicion, right, to trigger the test means that, you know, there, it’s very unlikely there could be a discrimination claim because it, it, by definition it’s random. And now there are some state local restrictions we’ve seen that, you know, it’s in, you know, random drug testing is entirely barred in some jurisdictions and in other, like you know, Minnesota, I believe in Montana, it’s restricted to safety sensitive employees. But again, you know, random drug testing can be, you know, a good alternative to, you know, pre-employment. And then, you know, also, you know, post-accident testing you know, this is something where I think employers think it sounds very common sense, all right?
You know, every time there’s an accident, we’ll have someone tested for drugs. But it, it requires a little more nuance than that because again, it should probably be related just to safety sensitive employees. And again, you know, are we going to test everyone for every, you know, injury on the job? That might be, you know, too much and be very costly. And maybe it should only include testing when you know the employee was potentially at fault, right? I mean, if Right, if someone’s driving a forklift and through no fault of their own, you know, someone bumps into them, you know, but it’s not that forklift o forklift operator’s fault, then why are we going to test them? So again, you know,
VANNOY:
I could just imagine how dangerous, I could just imagine how dangerous that could be culturally, right? I mean, you might think, okay, I suspected this person is high, right? They go out on their break, I think they’re out getting high. And so by, gosh, I just caught him in a mistake. I’m gonna drug test him. I mean,
SHENKER:
Yep.
VANNOY:
If, if you do this in a super consistent way, if it’s part of your employee handbook, you’ve set the expectations as your onboarding process and you actually do perform drug tests whenever there are quote unquote mistakes, and you better include clerical mistakes in slips of the tongue. I mean, because what, what the hell is the definition of a mistake otherwise, right? It’s like, this feels like slippery slope kind of territory to me that I mean, in, in a world where the war for talent has hit Main Street, and we’re trying to do our very best to broaden our candidate pool culturally feels counterintuitive, even though the, the spirit of the action might be like, I don’t want people getting high at work. That seems, that seems obvious, right? Right. So, so how, how do you give guidance for employers to handle this extremely slippery slope,
SHENKER:
Right? So you’re, you’re spot on in that it is, there are a lot of considerations, and it’s not always just the law. Sometimes it’s, you know, employee relations. So I think, you know, companies should start minimally with, you know, having a, a drug free policy, right? There you go. And, you know, especially with companies, with people in, you know, privacy related roles, you know, with data or safety sensitive positions, you know, training, you know, a once a year, two hour training for, you know, for those types of employees or for everyone for that matter, you know, is a positive thing, right? You’re, you’re not we’re not using the threat of tests. We’re just talking about, you know, explaining to them, you know, drug, you know, drug addiction, things like that. And, and how it’s not permitted, right? You know, some, sometimes, you know, it, it, it can go a long way to hear that.
And it just develops a culture where, you know, safety is valued and of both, you know, the individual employees and how their actions could affect others. So I think regardless of one’s gonna inte implement a drug testing program, you know, that’s something to consider. But yes, I, I think that, you know, then if, if you’re a business that’s going to consider testing, right? The next question is what type of testing you know, pre, pre-employment testing might be too costly. And like you said, when we’re just trying to get qualified applicants, is that the message we wanna send? Right? It might convey the right culture, but yeah, again, you know, might we be missing out on talent? So, you know, then again, like we said, reasonable suspicion, that’s one that may, you know, lead to potential, you know, discrimination claims because of the somewhat, you know, subjective nature of judging if someone might be high.
And again, we, we wanna look at, you know, specific, you know, behaviors, but you know, that that becomes difficult where, you know, then you possibly need to train managers on how to detect it. So, you know, things like, you know, random drug testing too. You know, a negative of that is, look, if, if you’re a small organization, you know, you need to do random drug testing often enough that it’s a deterrent. But if your pool of workers is pretty small, you’re talking about doing drug testing pretty often, which again, is that what you wanna actually be doing? You know, I think, you know, post-accident in restrict in jurisdictions that allow it is, is, you know, a good one. But yeah, that, look, there are pros and cons to each type of these you know, drug tests. And so it, it really becomes a weighing of the protections you wanna provide, the, you know, understanding the law in your jurisdiction and also the culture that, that you want to create. We want to create a drug-free culture that promotes that. But at the same time you know, there’s more ways to go about it than just requiring drug testing. So,
VANNOY:
Alright. So I think, so we’ve established that there are lot of, we’ve established, I think that there are some companies you’re required to, you need to find out if you’re not required to, there’s still really good reasons why it might be necessary. In, in our recommendation is that you gotta tie the, the reason for the drug test needs to tie back to a business reason. Whether that’s safety for themselves, safety for customer safety for coworkers you know, whatever, whatever the, the, the, the reason is, as long as it’s founded in a business reason, you can feel relatively safe. Let’s talk about and then I think kind of, I think was wise to put then in the culture in the context of culture, because there’s a legal framework here, and this is a culture framework here. And you can see this cutting both ways geograph based on geo geography based on industry based on demographic, where some people are gonna want maybe more open culture at work. Some people are gonna want just the opposite right. Depending on, on, on, on different views. And so there’s a legal component, there’s a cultural component in what culture are you trying to create. So let’s kind of shift if we can, because I think there’s gonna be a long laundry list of recommendations. What are the, what are the areas here that businesses get themselves in trouble? So they’ve made the decision they’re gonna do it. What, what are some of the traps that folks fall into?
SHENKER:
Sure. So I think you know, look, we, we see a, a lot of different types of litigation when, when it comes to the, these issues. I think one is again, you know, use of a medical review officer, because a, as I mentioned, you know, even when there’s a positive, you know, drug test for instance, you know, with marijuana, right? You might be in a jurisdiction, you know, look, there are many jurisdictions where, you know, medical and recreational marijuana are, are legal. There are still many where it’s not. So, you know, for instance, someone might test positive for marijuana and you know, that that could come back as a positive test. And, you know, if we don’t have a, you know, medical review officer, you know, I seen Pooler, you might say, oh, positive test, you know, you’re, you’re fired.
But you know, the point of this MRO is that, you know, they would reach out to the applicant and perhaps maybe that applicant has a, you know, a doctor who’s prescribed medical marijuana. And so you have these situations where there’s not necessarily evidence that they were, you know, using marijuana at work or that they were even, you know, high at work. Cause as we know, you know, marijuana and other drugs can stay in the system for a while and cause a positive drug test even when you’re not under the influence, right? So I think we get into situations where employers, mechanic mechanically, you know, operate with respect to drug tests. But it’s very important that, again, bringing back the ADA into the discussion, right? Just as you know, with, you know, prescription medication, right? You know, we want, you know, there should be an opportunity for the employee to explain, no, this is something that’s been prescribed to me. It may be then an accommodation, right? For them to use medical mar marijuana in this instance. And so, you know, terminating them for a positive drug test under that scenario could prove to be, you know you know, a trigger for a possible discrimination claim. Brian, what I, I think, again, you know,
VANNOY:
What’s, what’s the, what, how do, how do we look at this? Do I have this right thing about how to an employer should look at it legally? Usually it’s the, it’s the more restrictive law when you’re comparing federal versus state. Cuz one of, one of the real problems here, right, is marijuana is still illegal federally, right? But then you have state by state making it legal. If this was, say, overtime, you know, federal fair Labor Standards Act establishes a, a federal minimum wage 7 25. But if I’m in a certain state, or if I’m in a city or a county within a state, that it’s, it’s frequently higher, right? And so the law would that, that our guidance to employers is you basically have to follow the most restrictive law. But this is a little bit, right, different, this is counterintuitive, right? Because the most restrictive would say, okay, this is illegal at the federal level. I don’t care what my state says, I have to follow federal law here. What, what’s an employer to do?
SHENKER:
Yeah, no, you’re, you’re exactly right. We’re, we’re basically in the opposite here, right? Where marijuana is still legal under federal law. However since about 2013, the Department of Justice has taken a hands-off approach where you know, Congress does not permit the Department of Justice to use federal funds to interfere with, you know, state marijuana laws. So, you’re right. You know, so that’s why here, it, it’s a patchwork, right? We, you know, there may also be, you know, there, there’s been some legislation, nothing passed yet to decriminalize marijuana, get it off of the controlled substances list at the federal level. That has not been done yet. Although, you know, president Biden, you know, recently stated a few months back that he wants you know, a very expeditious review of how marijuana, you know co you know, is and should be scheduled.
And then you have, you know, the, the, you know, the FDA saying that again, you know you know, they, they have a take on it, right? The US Department of Transportation, right? They, the D O T does not permit, you know, marijuana for any reason. So yeah, while you know, for employers who are going to take action let’s say terminate someone for a marijuana positive drug result, you know, here you cannot rely on federal law, right? You can’t say, look, it’s illegal under federal law, you’re fired. Or you know, I’m a federal contractor and you, you tested positive, you know, you’re fired. That’s not necessarily the case because we have many, you know, basically we, this is one where we’re gonna look towards the states, and even if they have more expansive views than the federal government, that’s what we’re going with, right?
Right. So you know, and there are many different laws and, and, you know of how employers can, can test, right? For instance, in Illinois for example, right? Marijuana is a lawful consumable product. So employers cannot discriminate against an individual who uses a lawful consumable product. And therefore but also the, the law contains provisions allowing employers to test for mi marijuana and take adverse action. So, you know, you have Illinois where it’s saying both ways and employers aren’t quite sure what to do, right? Then you have New York, for example, where basically, you know, you cannot test for marijuana, you know, here in, in New York. So, you know, nationwide, you know, the trends we’re seeing is you know, certainly pre-employment, drug testing for marijuana would not be advisable. But then, you know, in terms of once they’re an employee, you know again, you know, given the proliferation of state and local laws that make it lawful to use marijuana off duty you know, there’s been a trend to discontinue, you know, some marijuana testing.
Yeah. so yeah, it’s, you know, and then if you get into me medical marijuana, you know, that becomes an issue again, involving the ada, where again, there’s, you know, many states where there’s going to be a risk of disability discrimination you know, so that we, you know, you know, employers should start thinking about, you know, medical marijuana as a, like a prescription for any other med, you know anything else, right? And that if you’re gonna take action based on, you know, a medical prescription, you know, that’s an issue. Now, again, you know, it might, you might require individuals to disclose if they are taking, you know, medical marijuana or again, you know, if you have people in safety sensitive positions, you know, you might require them to disclose any, you know, side effects that, you know, certain medication they’re on would, would result in, whether it’s drowsiness or, or other things, right?
Yeah. so, you know, that that might be a way to, you know, you know, have the issue dealt with that. Again, as you mentioned earlier, like, it’s, it’s about the, you know, the work, right? What’s the work that they’re doing and how is this impacting it? Right? We, you know, just because they’re using medical marijuana doesn’t mean we can’t employ them. It might be, you know, we need to conduct that individualized analysis and engage in the interactive dialogue as we do for accommodations and see, you know, is there a direct threat? Is the, you know, someone on medical who’s using medical marijuana, right? Should they be driving that truck or driving a forklift? Probably not. But again, we’re, you know, it’s an individualized assessment and maybe we need to move their shifts so that, you know, if they need their medical marijuana, you know, later in the day that we schedule them for a shift in the morning before they’ve taken it. And that way they could drive. Yeah. So just like any other, you know, disability type issue it’s become one that’s, you know, gonna be dealt with on an individual basis and, you know, regardless of the jurisdiction and companies, and they really wanna look at you know, the, the, the reason why someone’s, you know, testing positive for marijuana and, and what, you know, what can be done, whether it’s, you know necessary for some condition or not.
VANNOY:
I’m, I’m thinking, going back, so we’ve given guidance on this, on this program so many times around you have to follow the, the most restrictive law, and I guess I’ve always envisioned it as subsets of subsets, right? So a county, a city sits within a county, a county sits within a state, a state sits within a federal framework of laws. And so in the case of minimum wage, it’s, they’re all, they’re all subsets. You gotta do whichever, whichever is the highest. In this case, it’s not so much as a subset, it’s more like Venn diagram of risk, right? It’s like if just because it’s marijuana might be illegal federally, if my state or my county, my city says it’s illegal to test for it, then the local police can still knock on my door. I can be charged with a crime for illegally testing people, and I might be thinking I’m following federal, but that’s not gonna keep me, maybe not, maybe jail is a little too strong, but it’s not gonna keep me outta trouble locally, right? I’m still gonna have to hire folks like you. Right,
SHENKER:
Right, right. Yeah, you’re exactly right. This is one where it’s the least restrictive law we’re gonna follow. So, you know, we’ve seen defenses like that asserted in cases where, you know, a company says, no, it’s illegal on the federal level. I can test for it, even though a local law or state law says you can’t test for marijuana, and the courts have found, nope, you have to follow that, you know, that state or local law that says you can’t test, you cannot rely on the defense that it’s allowed you know, federally. So, yeah, that, that’s exactly right. It, it’s, it can be a little confusing cuz it’s the exact opposite of how we look at employment law basically, as far as I can think in almost every other situation. But when it comes to, you know, testing for marijuana, we’re really looking at the state and local level, regardless of whether it conflicts with, with the federal law. And so, yeah,
VANNOY:
Brent, I’m cur I’m curious about and I’m gonna switch topics on you slightly, invasion of privacy, right? So I’m an employee. I, I have my drug of choice whether legal in my state or not. But I’m really good at my job and you either want to use it as a condition of pre-employment or employment for, for some reason you wanna drug test me. I’m like, that’s none of your business. What, what legal ground does the employee have to stand on? Cuz clearly the laws could, we already said it, the laws are continuing to shift to have, provide more profe protections for employees than employers. So how firm is the ground of the employee to say, Hey, no, I’m not taking your test because I think it’s stupid. Or does the employer say, Hey, you don’t have to agree with me, this is the policy that we’ve, we, we, we’ve chosen and here’s why, and you will or you won’t be here. Okay. Walk, walk us through this whole invasion of privacy thing.
SHENKER:
Ex excellent question. So there are a number of states that, you know, we call quote unquote privacy states such as you know, California, Massachusetts New Jersey to name a few where, you know, those are states that recognize this real privacy, right? For employees in the context of workplace, you know, substance abuse testing. And so in those states, they have much stronger restrictions on, you know, who can be tested and in what circumstances. So, you know, earlier we were talking about r random, you know, drug testing, which, you know, seems like you know, in terms at least of ADA issues a very good alternative to some of the other more targeted tests. But even in those privacy states, because they recognize this privacy, right? They are going to limit you know, even random testing is only limited to safe safety sensitive employees.
You know, so it, it’s, yes, safety, you know, privacy rather is, you know, one of those issues that, again that’s one of the reasons that some states that have these restrictions. And again, even in I believe those same three states, California, Massachusetts, New Jersey, when it comes to, you know, post-accident testing, again, they’re limiting post-accident testing to only safety sensitive employees. So yeah, I, I think that privacy issue is, is a big one to, to consider because it’s, you know, look, again, it depends on the jurisdiction, but it is a real you know, right, that certain states, and I think more and more are that even though you’re an employee, you know, someone’s an employee, you know, it’s at will, you know, they’re, you know, that they still have some rights and protections when it comes to drug testing.
VANNOY:
Different topic. So you’ve decided, so you, you’ve watched this show and now you’re super smart and you’re informed, and you just, and you’ve made the clear decision, drug testing is an important thing for our organization, for the safety of our, of, of our, our employees and our clients, and we’re gonna implement it. Now, how, how do we implement it? I mean, do you, do you get to go to CSV or Walgreens and grab some kits and say, Hey, go, go pee in the cup in the bathroom. Do you got, do you, are there certified labs that you have to use, you’ve, you’ve referenced using was the mro? I, I, I believe, you know what, unpack this for us, for how employers should, in specific, especially small businesses, right? That this is an important thing, they’ve decided to do it, how should they do it,
SHENKER:
Right? So to be clear, and I know you were joking, we’re right, we’re, we’re not walking into, you know your local drug store and buying, you know, drug testing kits right. This is not one of the areas of you know, do it yourself you know, drug testing right. So I, I think, look, obviously the first step is you know, understanding what, what laws and restrictions there are in both based on your company’s industry, you know, whether there are certain requirements or restrictions. And then also based on, you know, your jurisdiction, just in general, what the take is on, on these you know, substance tests. And then once you, you’re there, then you know, the next question as we discussed is, you know, what type of drug test you wanna do, whether it’s pre-employment, random post-accident and, and again, you know, seek guidance on this would be my best advice.
Employers, you know, speak to you know, an experienced HR person at Asho, for instance, who has dealt with this issue before and can talk you through, you know, the pros and cons of, of each type. But then the most important part of it is having a written policy, right? So this is not something where, you know, for instance, we’re doing reasonable suspicion, drug testing, and all right, one day we think that, you know John Doe is, you know, high at work for some, you know, articulable reasons. We’re gonna, you know, just look online, find a drug testing place and say, Hey, we got someone, can we send them over there? Right now, this is something you need to have planned out procedures for how it’s going to operate. You’re going to have a drug testing, you know, vendor that you are, that you’re set up with, the company has an account, because this is something where, you know, when someone needs to be tested, it’s pretty immediate, you know, and when we say immediate, it’s the person is dropping everything they’re doing, and every step that they take after they’re notified of a drug test is towards getting that drug test.
And look, they’re their complications, right? And this is why policies are important, right? What if it’s so, if it’s you know, reasonable suspicion, that means you think someone is potentially high. We can’t just tell them to go drive off site. We need to have a policy for how they’re going to be escorted there. And so again, we think
VANNOY:
You’re not, we think you’re so inebriated that you can’t run this machine, so go hop into your car and get tested. Right?
SHENKER:
Right, right. And, and look, you know, I, I can tell you I’ve seen crazy things when it comes to this. I mean, look, I’ve seen companies that had a policy, a written drug testing policy in place, but they never thought to take the next step and set up an account with a vendor and figure out the logistics of how a drug test would occur. So that, you know, because we said, when, when someone needs to be tested, it needs to be immediate. And if you wait, you have to wait a day because you’re not in that vendor system. You know, that drug tester system, you know, you know, then what’s the point of the drug test? You know, something’s gonna be out of their system by that point, whether, you know, alcohol or potentially drugs. So, right. It, it’s about having the policy in place that’s employee facing, allows them to understand under what circumstances they, they might be subject to a drug test and how it will occur.
And then internally, the company needs to have a well thought out and documented procedure so that, you know, from the moment, you know, the supervisor comes to HR and says, you know, John Doe is slurring his speech you know, his, his eyes are, you know, red and, you know, he seems, you know, to not really have his balance when he was standing. You know, what, what are we doing right? The first set, maybe we’re having, you know, getting him into a conference room right away from, you know, anyone else where he might, you know, present, you know, a threat of harm and then, you know, what are the next steps? Because, you know, just like, you know, any other, you know, urgent workplace matter it’s, even if we haven’t come across it before, had to deal with it, it’s best to have a plan in place.
Because I’ve seen these situations developed for companies that don’t have a plan in place. And, you know, the big issue there is that, you know, if you don’t have the right processes, even if you get that drug test done and it comes back positive, there might have been steps you skipped, and then you’re going to make a workplace, you know, you’re gonna terminate this person based on that positive result. But, you know, maybe we’ve skipped a few steps and we haven’t followed our policy to a T because we were just scrambling. So I, I think this is an area where, you know, there’s this upfront, you know, time and expense of, you know, putting the policy and everything together, but that way it’s going to be ready for when it needs to be employed, that you know, those, you know, supervisors, hr, they’re going to know what to do and how to do it, and what steps to take.
And as we say about basically everything in employment law, right? The, the documentation, right for reasonable suspicion, for instance, right? It’s one thing to be able to articulate why we’re sending this person to a test, but you know, again, given the risk of discrimination claims and other types of claims, we want to document that. We wanna write that down so that, you know, we have, we have documented reasons why they were sent. Yeah. So I, I, I think, you know, those are things. And, and one other thing I’ll, I’ll mention is that some companies might have customers that, that require this. So it might be something that a business has to do if you do business with certain customers, and you know, again, then it certainly makes it, you know, worthwhile, you know, economically, financially, you know, for a company to, to do it and to make sure you’re doing the right way.
VANNOY:
Okay? This, so this is, this is a super edge case, but what do you do this, so this framework of which law do I follow? Federal versus state versus local? Law, local law says I can’t test for marijuana. My customer, I have a contract with my customer, and that customer is in a different state, and for whatever reason, the contract with them says they won’t do business with anybody who doesn’t drug test all their employees. What do I have to fire that customer? Or am I now on firm ground, quote, unquote breaking state law because it’s a customer con requirement, not my requirement,
SHENKER:
Right? So what I would say is that you’re probably leaning towards following your, your own state law, and that, you know, that issue should be discussed with, you know, your customer, you know, before entering that, that agreement. But, you know, look, what I can also say is that in many of these states right now like I mentioned, you know, Illinois for instance, it’s a little unclear, right? That, you know, some states even have, you know, laws that don’t appear to make sense in terms of clear cut advice on whether you can test for marijuana or not. And so I, I, I think, you know, the best advice would be to follow the state law that, you know, nea, you know, following a, a customer contract, typically we can’t contract around, you know, state laws, right? But Right. You know, to add another wrinkle to that, if you are sending employees to work in that other state for that customer, and they, they would be tested in that other state where it might not be allowed, right?
Or whether medical or marijuana testing might be allowed, whereas it isn’t in the company’s home state, then, then it might be okay. But again, you know, this is such a fluid situation Yeah. With laws that, you know, we have laws that are, you know, yet to take effect or just coming into effect. And so, you know, I think the, the general advice when it comes to you know, marijuana testing you know, and is really that you know, the adverse actions whether it’s okay, are really going to depend on whether it’s, you know, recreational versus medical. Yeah. You know, medical is obviously gonna going to add some protections because of the ada and it’s gonna be based on state and local law. So it, it’s real important to
VANNOY:
Brian, my, here here, my last legal question before I try to recap this, cause I know we’re bump, bump up this time here in cases where the law conflicts. So like, just like you’re saying, if this is and, and I don’t want to get into some crazy nuanced edge cases that anybody watching the show is gonna say, well, that doesn’t apply to me, but I’m ASUREming that if this goes before a judge, so you know, you’re sued, you’re charged, you end up in, in hot water. I’m ASUREming that the, I shouldn’t ASUREme I’m asking your experience. Do judges do the authorities within, say it’s d o l or whomever is deciding these cases, do they take into consideration best efforts of the employer and acknowledge, okay, this is for a medical reason that conflicts with this law, but not this law, and we did our best and here’s our documentation. How, how, how much does good intent and good documentation goodwill get you versus, I guess I’ll stop there. Maybe comment for me.
SHENKER:
Yeah. So I, I think look at a minimum, you know, a company who is, who can show, you know, good faith efforts even if there may be some exposure or liability for instance, for, you know, an improper drug test or for, you know, possible, you know, discrimination type issues, you know, that good faith is always, you know, is often going to be something you can use, if not directly towards liability, towards reduction of potential, you know, penalties and damages. But I think here, you know, when it comes to the conflict, I, you know, the, the case law that we are seeing is really that companies can’t rely on the federal law. So, you know, if you are a company that, you know, are an individual that owns a company that is really, you know, anti-marijuana, which, you know, there are, are many out there and you know, there, there may be very good reasons for that too.
But that if your position in doing drug testing or taking actions you know, is, you know, adv, you know, is in conflict with your local jurisdiction and you are going to rely on, well, it’s a class is you know controlled substance at the federal level, it’s still illegal. You know, we have seen that those arguments are not going to fly. So, you know, it, it’s in that regard, it’s much different than, you know, the wage and hour law, things like that. Where again, you, you, you can’t, you know, rely on the, you know, most restrictive the courts are showing you know, a very clear path that they’re going to rely on the, you know, whatever the local law says, even if that’s, you know, saying, you know, marijuana is, you know, like in New York, no testing for marijuana, right? You know, the, as an employer, you can’t say, well, you know, I’m not in favor of that, and because it’s illegal under federal law, I’m testing you know, it is just not going to, to really fly anywhere.
VANNOY:
So, I know we’re at time. I, I, I think maybe that, I want you to correct me if I’m wrong. I’m, I’m gonna do my best to recap the conversation. So first and foremost, you gotta find whether, whether you’re an employer who is legally required to drug test, there is, there is legislation around this if so, you probably already know who you are, but generally around public safety is, is the, the area second for those companies who are not legally required to drug test, but considering it just understand the context of your decision. There is a cultural sea change and you need to attract talent and you need to be open-minded about the, where that talent comes from. And, and this is not going away. You know, we talk about this all the time in the show. But then number two ASUREming you’ve established good business reasons, safety of customer, safety of employees, whatever the reason may be that you have decided you’re gonna do drug testing then you gotta avoid some of the big pitfalls.
You gotta have a, a super consistent process in consistent expectations. So if you, you can’t do pre-employment drug testing for one person and not another person. You can’t do pre-employment drug testing too far upstream because you might be kicking candidates out in a, in a discriminatory way without even realizing it. Most people aren’t gonna do that cuz it’s, it’s an unnecessary expense. You generally only are drug testing people you’re actually offering the job to. But if it’s during employment, whether it’s an immediate reaction to an accident whether it’s random, so long as you have really clear written policies on this, aka have a good hand handbook that’s updated and communicated and trained in the policies within, are trained upon on a regular basis. And then you apply those policies in a super consistent, transparent way, and you’re using the best practices.
You’re not gonna Walgreens and buying a cup for someone to go into the bathroom with and self administering. You’re using medical professionals and clinics and labs then you can be on solid ground. But this is a topic that we should all be super aware is fluid, right? And as much as we do our best on the show to provide black and white concrete advice for employers, th th this is shifting ground, and I think it’s gonna remain shifting ground for several years just because of the inherent conflict we have today between federal and state laws. Did, did I, did I capture it? Brian
SHENKER:
Absolutely couldn’t. It couldn’t have wrapped that up better myself.
VANNOY:
Yeah. Okay. So employers, we know this can be confusing. You, you, you still need to provide a safe workplace for employees, employers employee, employees for for clients in, in just acknowledge there’s a difference between drug policies and you can’t have it in your system versus nothing today suggested that it would ever be okay to be high or drunk at work. You can’t drink on the job while running a fork truck the same way. You can’t go out and get high during your lunch break and come back and run the fort truck. So none of this is, is saying marijuana, bad alcohol, good, because you can’t drink on the job either, right? This is all about whether you can use these substances o obviously, outside of work and is that in fact legal and, and what can you do about it to provide the kind of culture you want to grow your business in a way that’s safe and compliant with the law. So Brian, love talking to you. Always learn something from you. And everyone else, thanks for joining us today. Until next week, we’ll talk to you soon.