Wednesday, September 19, 2007

Significant Changes to Employee Drug Testing Laws

Significant Changes to Substance Abuse Testing Laws

Recently the States of Hawaii and Georgia passed legislation in support of workplace drug testing, specifically relative to oral fluid-based/saliva drug on-site screening, and workers compensation premium credits. These actions highlight the need for effective drug-free workplace programs as well convenient drug screening technologies that can be applied consistently, across all modes of testing, especially, however, for random, post-incident, and reasonable suspicion.

It is critical that drug-free workplace safety initiatives are enhanced for the betterment of the American workplace as a whole: employers, employees and families, insurors, etc.
Drug abuse is as bad as it has ever been in our places of employment as well as school systems, and hopefully, these new statutes are a sign of a commitment to change.

Our society cannot continue to sweep America's drug abuse problem under the rug. Abuse of prescription drugs, especially pain-relievers, has superseded marijuana and is is a dangerous trend world-wide.

Arguably, “recreational” marijuana use outside of the workplace may have little, if any, impact to employers or employees, excluding the obvious legal issues. The non-medical use of prescription pain relievers, however, in addition to being potentially lethal, commonly leads to addiction and even escalates to heroin use. The safety and wellness aspect of prescription drug abuse is a very serious issue that must be addressed.
A law that became effective on July 1, 2007, now allows employers to perform on-the-job drug testing using instant, on-site oral fluid/saliva drug screening devices. Oral fluid tests are cheaper, faster and easier to use than urinalysis, hopefully leading to more widespread and consistent drug testing programs.

While it may surprise many, the construction industry and locals unions in particular strongly advocate the new legislation as a means to replace the typical, more expensive laboratory-based urine drug testing. With oral fluid, initial results are available in minutes, and observing the sample collection mitigates the prevalent practice of drug abusers “beating the test” via sample adulteration or substitution. Urine laboratory testing typically required the expensive practice of sending employees off-site to a clinic or laboratory, a process that takes at least 3-4 hours with results available for 24-48 hours. As noted by Lt. Governor Aiona of Hawaii, "Drug and alcohol abuse remain a problem in Hawaii's workforce. The law will go a long way towards helping to promote a drug-free workplace. This measure provides a cost effective on-the-job alternative to laboratory tests that can be costly and difficult to schedule."According to the U.S. Department of Labor, drug or alcohol abuse is involved in the majority of fatal accidents in the workplace. These laws represent an effort by the State Government to make the workplace safer for everyone.Although the new law permitting oral drug testing was effective on July 1, 2007, in many cases collective bargaining agreements will have to be updated before companies can start using the non-FDA approved tests. This procedure isn't expected to take long, however, since the unions - as well as management and the State Government - are in favor of the new law. According to union sources, they welcome the improved safety and working conditions that the tests will introduce.
One representative of the Pacific Resource Partnership, an alliance between contractors and the Carpenters Union Local 745, said construction workers and the industry pushed for the new tests as a way to decrease costs and save time while keeping job sites safe."This is something that I think is going to be a great asset for employers, especially in the construction industry where public safety is a huge factor," said Lt. Governor Aiona.

In a similar bill, Governor Perdue of Georgia recently signed Senate Bill 96 into law which provides the option for companies throughout Georgia to drug test employees using an on-site rapid result oral fluid/saliva devices.

As in Hawaii, initial qualitative results are available in minutes, and if “negative” an employee goes back to work. Any “non-negative” (preliminary positive) results are sent to a lab for a GC/MS or LC/MS/MS quantitative analytical testing prior to substantive employers’ actions such as mandatory enrollment in employee assistance programs/counseling, removal from safety-sensitive duties, and/or suspension.
Per Governor Perdue, the bill which overwhelmingly passed the State Senate and House of Representatives, "had the strong support of the Georgia Chamber of Commerce and many other advocates of safe and drug-free workplaces that protect not only business owners, but employees and consumers as well.Companies using on-site oral fluid/saliva screens will now receive a 7.5 percent reduction in their worker's compensation insurance premiums. Summary

Drug testing in the workplace is not only legal, it may very well be part of an employer’s responsibility to provide a safe workplace for employees. The United Supreme Court has ruled that drug testing, including random drug testing, is legal. Furthermore, per the Department of Labor, OSHA, it is an employer’s responsibility to provide a safe workplace for all employees.

Assuming a comprehensive safety program is in place, a safe workplace is simply not possible without also maintaining a comprehensive drug-free workplace program inclusive of employee education, drug testing, and employee assistance/counseling.
Regardless of the specimen type used such as oral fluid/saliva, urine, or hair, it is critical that specimen collection be directly observed, and that drug testing is done on a regular basis. This includes; random, post-incident, reasonable suspicion, and return-to-duty mode. Pre-employment testing, while currently the most widely practiced of modes, is referred to by many experts as an “intelligence test”, and should not be relied upon exclusively.

When combined with education, and employee assistance programs, comprehensive drug-free workplace programs consistently result in a reduction in reportable site accidents of up to 50% or more, as well as multiple other safety and “bottom-line” benefits.

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