Drug Testing in the Workplace: FAQs

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We’ve been covering a lot substance abuse and drug testing topics over the last few weeks here at EmployeeScreenIQ. Below are the most frequently asked questions we received throughout our coverage and from our most recent webinar, “You’ve Got Questions, We’ve Got Answers: The NEW Basics of Background Screening.”

What are the different types of drug tests?
Urine is the most common specimen for drug screening. Per Quest Diagnostics, urine drug testing detects recent drug use and is the only testing method approved for federally-mandated testing. Businesses rely on laboratory-based urine testing for its cost-effectiveness, capacity to screen for a variety of different illicit drugs and ability to withstand most legal challenges.

Other specimens include saliva, hair and blood draws.

What is the standard panel of drugs tested for during pre-employment screening?
The most commonly ordered 5 panel drugs include: Amphetamines, Cannabinoids (THC), Cocaine, Opiates and Phencyclidine (PCP).

What is the difference between a 5 panel lab test and a 5 panel instant?
5 panel instant: Negative results are posted same day for instant testing. If non-negative detection, the specimen is sent to the lab for further testing and goes through the same screening and confirmation process as a lab-based test. Advantages of this option include: no shipping delay or lost specimens, affordable and easy to manage, electronic scheduling, convenient collection sites nationwide and non-negative results go through confirmation testing and full MRO (Medical Review Office or Medical Review Officer) process. 5 panel lab test: The lab-based test is collected and always sent off to the lab for testing causing a 2-3 day turnaround time.

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What is a dilute specimen?
A dilute specimen can be:

  • A specimen with creatinine and specific gravity values lower than expected for human urine.
  • An excess of water in the urine specimen in which the donor may have consumed a high quantity of water before taking the test or may have added water to the specimen.
  • Can be reported as either Negative-Dilute or Positive-Dilute.

What are adulterants and can labs test for them?
An adulterated specimen contains a substance that is not expected to be present in human urine or contains a substance expected to be present, but is at a concentration so high that it is not consistent with human urine. A substituted specimen is a specimen with creatinine and specific gravity values that are so diminished that they are not consistent with human urine. Labs are able to conduct adulterant testing most commonly by nitrates.

What’s the difference between DOT and Non-Regulated drug tests?
DOT (Regulated):

  • Regulated by the Federal Government
  • Strict Guidelines (DOT Rule, CFR Part 40 describes required procedures for conducting workplace drug and alcohol testing)
  • Currently paper chain of custody only (However, DOT has approved electronic scheduling as of April 2015)
  • Urine specimen only – cannot be altered
  • DOT lab test (Standard 5 panel expanded for MDMA and 6-AM) – cannot be altered
  • Alcohol testing required for some agencies
  • Under the DOT, each agency must conduct random drug screening on all employees working in a safety sensitive position.

Non-Regulated:

  • Non-regulated
  • Client has freedom to customize their drug screening program
  • Many use electronic scheduling or paper chain of custody forms
  • Variety of specimens (urine, hair, saliva, blood)
  • Client able to select their panel
  • BAT is available through PPN and third-party sites

Should I do an alcohol breath test after a workplace accident?
DOT positions: Under the DOT, federally regulated positions are required to undergo a BAT (Breath Alcohol Test). Employers should consult the DOT guidelines as to the frequency and if they are required to conduct the BAT for any of the following reasons: Reasonable Suspicion, Post-Accident and Random Drug screening Non-DOT positions: It is recommended and common to follow DOT guidelines to conduct a BAT for reasonable suspicion and post-accident. The employer should refer to their internal policies for such matters.

When and how often should I run random drug tests? (DOT and Non-DOT)
DOT is typically done on a quarterly basis and selection guidelines are followed per DOT agencies. Non-DOT is based on client preference, typically monthly or quarterly.

What are the conditions that support random drug testing and how is my company protected?
Your background screening provider should have tools and options available for random screening. Check with you legal counsel when setting up a random drug screening program to ensure compliance.

What is an SAMHSA Certified Lab?
SAMHSA is the Substance Abuse and Mental Health Services Administration. They are an agency of The Department of Health and Human Services (DHHS) that regulates and inspects federally accredited drug-testing laboratories. A SAMHSA Certified Lab is any United States laboratory certified by DHHS under the National Laboratory Certification Program that meets the minimum standards of Subpart C of the HHS Mandatory Guidelines for Federal Workplace Drug Testing Programs; or, in the case of foreign laboratories, a laboratory approved for participation by DOT under this part.

A list of SAMHSA certified labs can be found here:
http://www.samhsa.gov/sites/default/files/workplace/certified-lab-list-july-2015.pdf

How does legal marijuana effect drug testing in the workplace?
While it’s still wise to promote and maintain a drug-free workplace, you shouldn’t continue your current drug testing practices without considering what marijuana’s legalization means to your company’s official policy. Do review your drug-free workplace policy and substance abuse testing program with your legal counsel. Don’t stop enforcing your drug policy solely because of state marijuana laws. Do apply your drug testing policies fairly and consistently. Don’t terminate or disqualify someone without careful consideration and adherence to policies, particularly in light of medicinal or “legal” recreational use. Do consider the health and safety of all of your workers in the application of your drug screening policy.

Fewer Employers Asking Candidates to Divulge Criminal History

Trends in Employment Background Checks

For the sixth consecutive year, EmployeeScreenIQ surveyed U.S.-based employers regarding their use of employee background checks. As with our previous surveys, the 2015 survey was designed to provide a reliable snapshot of:

  • How employers currently utilize background checks.
  • How they respond to adverse findings on background checks.
  • Their paramount screening-related concerns.
  • And their practices concerning Fair Credit Reporting Act (FCRA) responsibilities, Equal Employment Opportunity Commission (EEOC) guidance, and evolving ban the box legislation.

Today, I’d like to share our findings as to employers ask candidates to divulge criminal history prior to the background check. Take a look at the information below:

Do You Ask Candidates to Divulge Criminal History?

As you know we’ve dedicated a lot of attention to “Ban the Box” legislation which has been on the rise in cities, counties, and states across the United States over the last several years. Just in case you haven’t heard much about this movement yet, here’s a brief explanation. When a particular location “bans the box” this means that employers are unable to include the check box on applications which asks whether or not an applicant has been convicted of a crime—at least not until later in the hiring process.

While these laws are well-intentioned, they’ve often become confusing for employers. While they protect job candidates from discrimination, laws are inconsistent, which exposes employers to an increased risk of breaking the law if they are unaware of the facts.

This year’s responses show that fewer respondents are asking candidates to divulge their criminal history on job applications: 53% this year versus 66% last year. Therefore, ban the box legislation and/or EEOC guidance may be having an impact on employer behavior.

However, we must point out that 75% of respondents still ask candidates to divulge their criminal history at some point during the hiring process. While 20% of participants indicate they don’t ever ask candidates about past criminal history, this can be a risky proposition as employers are held to the legal standard, “If they could have known, they should have known,” which can result in potential negligent hiring issues.

Given the EEOC’s recommendation to refrain from asking for self-disclosure on job applications—and a growing number of state and municipal laws that ban the practice outright—it would seem that employers continue to skirt this matter at their own peril, although asking candidates about their criminal history on job applications is still legal in some jurisdictions and required for some regulated industries.

We continue to advise employers that ban the box laws will likely continue to be adopted across the country at both the city and state levels.

To learn more about these findings and many others, check out the full results.

2015 New York SHRM Annual Conference (Speaking Engagement)

New York SHRM State Conference

EmployeeScreenIQ executive vice president and chief marketing officer, Nick Fishman will present, “My Candidate Has a Criminal Record. Now What?” at the 2015 New York SHRM State Annual Conference at the Turning Stone Casino in Verona, New York on September 22, 2015, 10:30-11:45 a.m.

Not a month went by in 2014 without a multi-million dollar lawsuit filed against an employer for its background screening practices. Many companies may be putting themselves at risk if they are not following appropriate state and federal screening laws. While a criminal record should not automatically disqualify a candidate, employers must also protect their companies by properly screening candidates.

With nearly 16 years in background screening, Nick Fishman presents four steps to compliance when a candidate has a criminal record. These include: the proper use of a hiring matrix, individualized assessments, the execution of a two-step adverse action process and proper management of candidate disputes.

For more information, please visit the New York SHRM State Annual Conference website.

2015 HR Indiana Annual Conference (Speaking Engagement)

Indiana

EmployeeScreenIQ president and chief operating officer, Jason B. Morris will present, “My Candidate Has a Criminal Record. Now What?” at the 2015 HR Indiana Conference sponsored by the Indiana State Council of SHRM at the JW Marriott in Indianapolis, Indiana on August 26, 2015, 8:15-9:30 a.m.

Not a month went by in 2014 without a multi-million dollar lawsuit filed against an employer for its background screening practices. Many companies may be putting themselves at risk if they are not following appropriate state and federal screening laws. While a criminal record should not automatically disqualify a candidate, employers must also protect their companies by properly screening candidates.

With nearly 18 years in background screening, Jason Morris presents four steps to compliance when a candidate has a criminal record. These include: the proper use of a hiring matrix, individualized assessments, the execution of a two-step adverse action process and proper management of candidate disputes.

For more information, please visit the HR Indiana Annual Conference website.

Marijuana Legalization: It’s High Time for Employers to Review Drug Testing Policies

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Earlier this year, the headline of a Washington Post editorial declared, “Pot is increasingly legal. Employers need to stop screening for it.”

While the first statement is undeniably true, it’s no reason for you to stop testing employees and applicants for marijuana—even if you are in a state that has legalized medical marijuana or recreational use of the drug.

Legalization in no way eliminates the many good reasons you should continue to screen employees and job candidates for marijuana. These reasons include the drug’s impacts on your employees’ productivity and health … your company’s health insurance costs … and your overall liability and workplace safety risks.

In fact, with so much at stake, your company’s drug policy is more important than ever. Download our new article, “Marijuana Legalization: Why It’s High Time You Reviewed Your Company’s Drug Policy,” to learn:

  • The implications of the latest legalization data and trends.
  • How the courts have ruled in several recent drug cases involving employers.
  • How your peers plan to react to the legalization of marijuana in their states.
  • And how your company should respond to the legalization of marijuana.

In short, a drug policy is a terrible thing to waste.

Marijuana is Becoming Increasingly Legal: Why It’s High Time You Reviewed Your Company’s Drug Policy

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Legalization in no way eliminates the many good reasons you should continue to screen employees and job candidates for marijuana. These reasons include the drug’s impacts on your employees’ productivity and health … your company’s health insurance costs … and your overall liability and workplace safety risks.

New EmployeeScreenIQ White Paper Reveals 5 Ways Employers Should React To Surge of Marijuana Legalization

CLEVELAND, July 16, 2015 /PRNewswire/ — Given that 23 states and Washington, D.C., have legalized marijuana use in some form so far, the question arises: How should employers adjust their drug policies if the medicinal or recreational use of marijuana is permitted in their state or locality, or even nationally?

A new white paper, “Marijuana Legalization: Why It’s High Time You Reviewed Your Company’s Drug Policy,” from EmployeeScreenIQ examines the rise of marijuana legalization and its implication for employers. It details recommendations regarding drug-free workplace and substance abuse policies, drug testing policies and important legal ramifications in light of the new legislation.

Dylann Roof’s Background Check: Quality Takes Time

Criminal Background Check

It’s a heartbreaking story. Every time a shooter like the alleged killer Dylann Roof becomes unhinged and takes innocent lives, we, as a nation, mourn. What makes the story even worse is to think that it all might have been prevented by taking more time with the background check.

Roof is accused of killing nine people at a church in South Carolina three weeks ago. Last Friday, FBI Director James B. Comey said Roof was able to purchase the gun used in the attack only because of lapses in the FBI’s background-check system. In a statement last week, Comey said “This case rips all of our hearts out. But the thought that an error on our part is connected to this guy’s purchase of a gun that he used to slaughter these good people is very painful to us.”

Mistakes happen. Particularly when time is short. But when the stakes are this high, the best way to avoid catastrophe is to allow sufficient time for a proper background check.

What went Wrong?

According to the FBI director’s statement, on Saturday, April 11, Roof attempted to purchase a handgun from a store in West Columbia, South Carolina, a suburb of Columbia. On the next business day, Monday April 13, an examiner began to process the request. Her research revealed an arrest in South Carolina on March 1 on a felony drug charge.

The examiner followed normal FBI protocols, and through no fault of her own, she didn’t have access to the critical details of the arrest in time to stop the purchase of the gun. The details were out there, but the three day National Instant Criminal Background Check System (NICS) limit did not allow sufficient time for a reasonable investigation. As Comey put it,

“The report by the Columbia police reflected that Roof admitted he was in possession of drugs. If a NICS examiner saw that, Roof would be denied permission to buy a gun. But the examiner never saw that.”

The exact sequence of events is complicated (you can read the full FBI statement here), but essentially the details of the arrest were not uncovered due to an honest geographical mistake concerning the county of the arrest. Because of the mishap and delays in getting the information from the police department, the three days allowed under NICS lapsed, and the sale was allowed to move forward.

Speed at the Expense of Quality

The private background screening industry learned long ago that databases and promises of “Instant” background checks were trouble. With the improvements in technology and the rise in use of multi-jurisdictional databases, it’s tempting to think that there is some overnight solution for a criminal background check. There is no such thing as a complete “national” criminal database, and any promise of an instant search is probably a scam. While most screening companies use databases, they should only be used as a tool in conjunction with a hands-on county level search.

The FBI database is no exception. It’s known for its lapses and gaps in information.  Earlier this year, the Government Accountability Office (GAO) released a report of findings from a two year study titled “CRIMINAL HISTORY RECORDS: Additional Actions Could Enhance the Completeness of Records Used for Employment-Related Background Checks.” See my post about that report here.

One of the report’s key findings is the woeful state of FBI background checks and law enforcement databases. The number one concern is this: incomplete records.  According to the report, around 25 percent of state’s records did not have dispositions. That’s a huge gap.

Those of us in the private sector know from experience that incomplete records can’t be relied upon for hiring decisions; they lead to delays in hiring, rejection of qualified candidates, lawsuits, or worse. Part of the answer for private screening firms is to take the additional time needed to search at the county and local level.

Some courts are slower than others. Some jurisdictions only offer what is referred to as a “clerk assisted” search—which means that the research can only be done by the clerk. Sometimes the record needs to be pulled out of an archive or an ancient paper filing system before being hand delivered to a researcher. That can take weeks.  Clients don’t want to hear that a search is delayed because of a delay in obtaining a court record. But frankly, that’s too bad. It’s just not worth it to take shortcuts.  It is literally a matter of life and death.

Fixing the Problems

States are working to fix the problems. Just today, the Columbus Dispatch reported that Ohio Attorney General Mike DeWine “wisely is pushing ahead with replacing Ohio’s dangerously flawed criminal-background-check system.” The 15-year-old computer system has been compared to a “Model T,” and has notoriously missed criminal records on known offenders. The FBI is looking a ways to improve the NICS process.

But meanwhile, the FBI and state agencies are relying on flawed information. Organizations that rely upon a fingerprint search through the FBI database are getting short-changed. The information is not there. You will miss records—it’s just a matter of time. The private sector has better solutions–albeit the cost more and take longer.  Strict time limitations, like the three day limit on NICS checks, simply do not allow sufficient time for the process to work.

Would a private background company have found the record in the Roof case? Probably. But it most likely would have taken more than three days. It just doesn’t work that fast. If the FBI can’t get the information that quickly, it’s unlikely a private researcher would fare much better. But the point here is that quality takes time. And when lives are at stake, it’s worth it to take that extra day, or even weeks, to get it right.

Oregon Bans the Box

Oregon Ban The Box

Oregon has officially banned the box for all employers, delaying the timing of pre-employment criminal background checks. On June 25, Oregon Governor Kate Brown signed HB 3025 into law. Effective January 1, 2016, it will be illegal for an employer in the State of Oregon to require an applicant to disclose a criminal conviction on a job application or to require an applicant to disclose, prior to an initial interview, a criminal conviction.  If no interview is conducted, it will be illegal to require an applicant to disclose, prior to making a conditional offer of employment, a criminal conviction.

The statute specifies that it does not make it illegal to perform a criminal background check or to consider conviction history in the hiring process.  It does, however, defer an inquiry into criminal history until after the applicant has been interviewed or potentially offered the position.

Exempt from the statute are jobs that require a criminal inquiry pursuant to federal, state or local law, law enforcement jobs, positions in the criminal justice system, and nonemployee volunteer positions.

The law does not prevent municipalities from enacting their own ban the box ordinances, and some speculate that the City of Portland may push ahead with its own, stricter, version of the law that would ban all criminal history inquiries until after an offer has been made.

The full text of the statute can be found here.

The State of Marijuana

 

With the marijuana legalization trend showing no signs of slowing, many employers are finding themselves in a position where they don’t know how to respond to the new laws. Today, 23 states and Washington D.C., have legalized marijuana in some form, with Alaska, Colorado, Oregon, Washington and Washington D.C. legalizing recreational use. 25 million Americans have admitted to using marijuana in the past year, while 14 million said they use marijuana regularly.

Employers, especially those affected by the new laws, are asking: Is it possible to maintain a drug-free workplace?

The answer is simple. Legalization in no way eliminates a company’s right to continue its drug screening program or the reasons for marijuana screening, which include workplace safety, productivity and health concerns, limiting health insurance costs and protecting your company image. If you know the latest legalization laws (check out our map below), data and trends, how courts have ruled in recent drug cases involving employers and have a drug screening program with a streamlined process, you can eliminate your organization’s exposure to unnecessary risk and litigation.

To learn more about streamlining your drug screening program, download our guide “It’s High Time to Streamline Your Drug Screening Program.”