New State and Federal Drug Testing Laws Impacting Employers in 2020

January 14, 2020 | Cristina Loayza

Ringing in a new year brings new requirements for employers managing their workplace drug and alcohol screening programs. From state-specific laws to changes at the federal level, it is critical to understand these changes and make the appropriate internal adjustments to ensure your compliance.

 

State Laws

Several states, and one city, have new laws that employers must comply with here in the new year. Below is a summary of the significant changes:

Illinois

On June 4, 2019, the Illinois Legislature passed a compromise bill (HB 1438) that establishes the “Cannabis Regulation and Tax Act.”  The law took effect on January 1, 2020, authorizing the personal legal use of marijuana for anyone over the age of 21.

In summary, the bill states that employers can:

    • Adopt reasonable “zero tolerance” or drug-free workplace policies.
    • Adopt drug testing policies.
    • Adopt policies concerning “smoking, consumption, storage, or use of cannabis in the workplace or while on call.
    • Discipline (including terminate) any employee that has violated the employer’s policies.
    • Prohibit employees from being under the influence or using cannabis “in the employer’s workplace or while performing the employee’s job duties or while on call.

 

An employer may consider an employee to be impaired or under the influence of cannabis if the employer has “a good faith belief” that an employee manifests specific, articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.

State lawmakers further amended the Illinois Adult Use of marijuana law on December 4th. The change to section 10-50(e)(1) states as follows:

(e) Nothing in this Act shall be construed to create or imply a cause of action for any person against an employer for:

(1)  “actions taken pursuant to an employer’s reasonable workplace drug policy, including but not limited to subjecting an employee or applicant to reasonable drug and alcohol testing, reasonable and nondiscriminatory random drug testing, and discipline, termination of employment, or withdrawal of a job offer due to a failure of a drug test.”

Nevada

Effective January 1, 2020, Nevada is the first state to prohibit employers from refusing to hire a prospective employee solely due to a positive drug test for marijuana. Employers will no longer be able to take employment action if an applicant submits a drug test that is positive for marijuana unless the prospective employee is applying for specific safety-sensitive jobs.

New Jersey

The state medical marijuana law in New Jersey was amended in July of 2019 to prohibit employment discrimination against medical marijuana users. Employers are still permitted to have a drug testing policy; however, if a registrant tests positive for marijuana, the employer must:

    1. provide an opportunity to present a legitimate medical explanation
    2. provide written notice of the right to explain the result.
    3. Within three working days, the employee or job applicant may submit information to explain the result or may request a retest at the employee or applicant’s own expense.

 

New York City

The New York City Council passed Ordinance Int. No. 1445-A, which will take effect on May 10, 2020. The Ordinance prohibits employers or their agents from requiring a job applicant to submit to a drug test “for the presence of any tetrahydrocannabinols or marijuana in such a prospective employee’s system as a condition of employment.” There are a few exceptions to this rule.

Oklahoma

Oklahoma’s medical marijuana law was amended in August of 2019, expanding new protections for medical marijuana users. The law prohibits employers from discriminating against an employee or applicant solely on the basis that the person’s status as a “medical marijuana licensee.”  Additionally, no employer may take employment action based on a medical marijuana licensee’s positive drug test for marijuana metabolites unless:

    1. the individual is not in possession of a valid medical marijuana license,
    2.  the licensee possesses, consumes or is under the influence of marijuana or a marijuana product while at work or during “fulfillment of employment obligations,”
    3. the licensee is in a position which is considered “safety-sensitive” defined by law.

 

The state also specifically defined what job duties are considered “Safety Sensitive.”

 

Federal Changes

2020 also brings some of the most significant regulation changes in recent years for the Department of Transportation (DOT) drug and alcohol testing programs.

FMCSA Clearinghouse

The Federal Motor Carriers Safety Administration (FMCSA) Clearinghouse rule, also known as the Commercial Driver’s License Drug and Alcohol Clearinghouse (“Clearinghouse”)  – 49 CFR Part 382, subpart G, went into effect on January 6, 2020.

Officials with the FMCSA promote that the Clearinghouse will improve highway safety by helping employers, the FMCSA, State Driver Licensing Agencies, and State law enforcement to quickly and efficiently identify drivers who are not legally permitted to operate commercial motor vehicles (CMVs) due to drug and alcohol program violations. This new, secure online database will provide access to real-time information, ensuring that drivers committing these violations complete the necessary steps before getting back behind the wheel or performing any other safety-sensitive function.

FMCSA Control and Custody Form (CCF)

The current versions of the CCF and ATF specifically permit the use of either the driver’s social security number (SSN) or employee identification number (EIN) when completing the CCF or ATF.  However, as of January 6, 2020, FMCSA requires that the commercial driver’s license number (CDL) must be used instead of the SSN or EIN when FMCSA-covered drivers’ positive drug or alcohol test results are reported to the Clearinghouse.

FMCSA Random Testing Rates

The FMCSA announced that it is increasing the minimum annual percentage rate for random controlled substances testing for drivers of commercial motor vehicles (CMVs) requiring a commercial driver’s license (CDL) from the current rate of 25 percent of the average number of driver positions to 50 percent of the average number of driver positions, effective in calendar year 2020. The FMCSA Administrator must increase the minimum annual random testing percentage rate when the data received under the reporting requirements for any calendar year indicate that the reported positive rate is equal to or greater than 1.0 percent. Based on the results of the 2018 FMCSA Drug and Alcohol Testing Survey, the positive rate for controlled substances random testing increased to 1.0 percent. Therefore, the Agency will increase the controlled substances minimum annual percentage rate for random controlled substances testing to 50 percent of the average number of driver positions.

Oral Fluid for Federal Testing

Department of Health and Human Services (HHS) approved the use of oral fluids for Federal Drug Testing Programs. The Final Rule went into effect on January 1, 2020. Federal agencies, such as the Department of Transportation (DOT), are required to follow the HHS Guidelines in developing drug testing programs for their regulated industries and modes. This may take some time before the use of this alternative specimen collection method if officially adopted.

 

Take Action

Employers as strongly encouraged to review their workplace drug screening policies and related procedures, make any appropriate revisions as required by any of the new laws that impact their programs and implement those changes immediately.

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