Employers are legally responsible for maintaining an effective drug-free workplace program, a big challenge in an era of legalized marijuana, increasing drug abuse, and the ongoing task of hiring and retention. At the same time, employers must also choose the right Pharmacy Benefit Manager for their organization to manage costs, ensure quality of care, and improve the health and well-being of their employees.
Key Takeaways:
Era of legalized marijuana, increasing drug abuse in the ongoing task of hiring and retention.
On behalf of McGriff, I would like to take this opportunity to thank each of you for joining us today as we discuss a new vision for your company's drug free workplace programs.
My name is Jen Desco, and I will be your host for the webinar today. There are just a couple of housekeeping points that I would like to point to share before we get started. This is a live session, and you are in listen mode only. If you have any questions at any time during the presentation, feel free to utilize the chat box or the q and a box to type in your questions, and we will address them during the q and a segment towards the end. If time doesn't permit for us to answer all of the questions after the presentation, we will be sure to capture them and provide responses afterwards.
Now it brings me great pleasure to introduce you to our speaker.
Bill Curran, president and founder of Current Consulting Group, is on with us today. Bill founded the Current Consulting Group in nineteen ninety eight, and it has become the number one recognized brand name and compliance and business development consulting in the drug testing industry. He created Current Compliance in two thousand and one, which today is the leading online subscription database service for all state laws related to workplace drug testing, including marijuana and workers' compensation laws. Bill is the former executive director of the American Council for Drug Education, director of the Institute for a Drug Free Workplace, staff director of the US Chamber of Commerce, vice president of consulting services for the employee information services, and consultant to the US Department of Labor.
Bill consults on compliance and state law matters, marketing, business development, bringing new products and services to the workplace market, and employee screening trends. His clients include many of the leading providers of drug and alcohol testing services, and additionally, each year, he makes nearly fifty in person and virtual presentations, writes and has published dozens of articles, white papers, and reports, and oversees two major drug testing surveys. So, without further ado, I will turn it over to Bill.
Well, thank you very much, Jen, and welcome everyone to today's webinar presentation. I just want to start out by saying how, how, how much we truly enjoy our association with McGriff and for the opportunity to present today on this very important topic. I also want to point out that, my associate, Brian Feeley, the executive vice president at current consulting group is on the line as well. And he may chime in, in a few different places during presentation to add some expertise. He's, spent over twenty five years with Orchard Technologies, the number one brand in lab based oral fluid testing. So it's got a lot to add there. And we're both available to answer any questions that you have.
Here's the agenda for today, but we can go in any direction. So feel free to ask whatever questions you'd like about drug testing in general or today's topic, especially about marijuana in the workplace, oral fluid testing, your drug testing policy, anything along those lines. Feel free to submit questions and we'll leave some time at the end to go through it, your questions. And then if we don't get to all of the questions because we have a large audience today, we will respond to all of them by email, if not during the webinar today. So let's start with where we're at right now when it comes to marijuana.
Now, some of the slides that are coming up have a lot of stats on them. I'm not going to read every one of them. I don't go through them bullet by bullet, but I do want to point out a few major things. So if you if you go down to the third bullet where it says thirty percent, thirty percent of individuals in a survey of five hundred workers who admitted that they use cannabis, marijuana, thirty percent admitted that they use it on their way to work, and forty eight percent admitted that they use it while they're at work on the job, either during a break or while they're actively working.
So when we talk about marijuana from the perspective of its impact on the workplace, we know that a lot of that is coming from people who either show up to work under the influence of marijuana or they're getting high while they're on the job. So we know that now there was another study that came out from the National Safety Council.
This was a survey of employers on the subject of impairment.
Now we know that lots of things can cause impairment. Okay. So these statistics here don't necessarily refer to or mean that it was impairment only related to substance abuse, which is a big factor when it comes to impairment in the workplace. It could be other things as well. But look at the first bullet. Fifty two percent said that impairment is decreasing the safety of their workforce.
We know that from a lot of other studies in terms of the impact of being under the influence of drugs, but particularly marijuana on people's ability to perform certain job functions that could compromise safety in the workplace. And then go down to the third bullet where it says forty five percent. Forty five percent say impairment is causing more misses and thirty nine percent say impairment is causing more injuries. So we know that there's there's near misses in the workplace caused by impairment.
There's more injuries being caused by impairment. I don't have the statistics on any of the slides, but I want to point out that there's a laboratory in our industry, Quest Diagnostics, that puts out an annual report on the results of drug testing done through their laboratories for workplace clients. And they found that not last year, but the year before that post accident positivity for marijuana was at a twenty five year high. So no pun intended there, but they were looking at the level of post accident.
These are drug tests that were conducted after an accident occurred in the workplace. So post accident drug test positive results for marijuana were at a twenty five year high.
That's significant, right? It corresponds with, and if you look at the data from QUEST, it goes back about fifteen years. You can see that it's interesting how this gradual but steady increase in post accident positivity corresponds with the growing and expanding legalization of marijuana, either for medical or recreational use in states, how those two have, you know, they're on parallel tracks together. And so as marijuana becomes legal, more workers are impaired on the job. And that's evident from the dramatic increase in post accident positivity with, at least with this one laboratory, which is the number that's the largest laboratory in the drug testing industry. And then from a business perspective, it always comes down to, well, what does this cost me? So there's some big numbers on there, dollars eighty one billion a year, things of that nature.
The typical substance abusing worker, according to a study from the University of Chicago, costs employers about eight thousand seven hundred dollars a year on average from lost productivity, absenteeism, things like workers compensation claims, etcetera. Now, an individual workers compensation claim is going to cost a lot more than eight thousand seven hundred dollars or it certainly could. The average cost of a workplace fatality is just about one point one million dollars on average. And vehicular accidents that result in workers' comp claims, the average is about seventy five thousand dollars But on average, when you put everything together, a typical substance abusing worker costs his or her employer about eight thousand seven hundred dollars a year.
And about fifteen percent of the workforce, according to government statistics, are regular substance abusers or substance users. Let's put it that way. So I'm not going to do the math, right? Because every company is different.
Your size of company is different. But you have one hundred employees and fifteen percent are substance users.
And each of those fifteen percent, which would be fifteen percent in an example with one hundred, is costing you eight thousand seven hundred dollars a year on average. You do the math and you can see that it's a lot of money, right? Especially when you compare it to the cost of your of a drug testing program, which we'll get to in a minute here. Okay. Now, overall employer reactions, we know that the economy, the legalization of marijuana and other cultural trends are really sort of tempting some employers to either stop drug testing or to suspend testing for marijuana, etcetera, because they think it's it's making it harder to find people to hire.
But at the same time, they're also concerned about possible lawsuits brought by an employee or an applicant who tests positive for marijuana in a state where marijuana is legal and then challenges your program legally. Mistakenly believing it's not legal to test for marijuana in your state. That's one of the big ones that comes up. Here at the Current Consulting Group, we do a survey of employers every year, and we also do a survey of drug testing providers.
So we've just released the results of our twenty seventh annual drug testing industry survey. And in September or no, October this year, we'll release the results of our annual employer drug testing survey. But one of the reasons why many employers identify for dropping marijuana from their drug test panel or the drugs that you test for cocaine, opiates, etcetera. But one of the reasons for dropping marijuana from their drug test panel is that it's not, quote unquote, it's not legal to test for marijuana in their state.
The truth of the matter, it's legal to test for marijuana in every state. However, I've got a slide coming up. There are some states that are far more problematic when it comes to testing for marijuana. I'll point that out.
But employers have lots of reasons why at least there's somewhat of a trend toward dropping marijuana from your drug test panel, including the ones that are on the screen here. Now, something to keep in mind, though, if you're considering dropping marijuana are two doctrines of law that come into play, negligent hiring and respondent superior.
These are two laws that hold you, the employer, responsible for the actions of your employees when they are functioning within the scope of their employment, their scope of work. So for example, if you have a gentleman who's driving a delivery van, it doesn't necessarily that wouldn't necessarily fall under the DOT drug and alcohol testing regulations, but it may be somebody who's using marijuana because you stopped testing for marijuana you don't know, and he or she is out there driving a delivery van. If they cause an accident while functioning within the scope of their employment, why they were hired and they're high on marijuana when that happens, you, the employer, can be held responsible for that behavior, for the for the consequences from that from that individual being out there.
Driving your delivery van well impaired by any drug for that matter, but marijuana in particular. You as the employer have a responsibility to know or at least to minimize or mitigate the risk of having employees on your payroll who are functioning in a safety sensitive occupation, for example, and possibly being impaired while on the job. That could come back on you. So here's a good reason, especially if you have individuals who perform safety sensitive functions to have a drug testing program that includes marijuana still.
I don't think it's a moral issue whether you think marijuana is good or bad or should be legal or shouldn't be legal or people don't have the right to do whatever they want. I don't think it's a moral issue. I don't think it's an ethical issue. I think it's simply a business decision for you as well as for me because I'm a business owner.
It's a good smart business decision to do whatever I can to make a good faith effort to ensure that my employees are are able to to do the job that I hired them to do without being impaired while they're doing it, especially if they're functioning in a safety sensitive occupation.
Okay. So when it comes to marijuana and testing for marijuana, yes, there are some pros and some cons when it comes to that question. Right? So limiting or dropping testing for marijuana, the pros, well, you're not going to have any more marijuana positives, right?
Because you've dropped it from your panel. So you're not going to have that issue to deal with. Now, you could still be held responsible as an employer if an individual, is using marijuana and they and on their way to work, for example, and they show up to work high on marijuana and, you know, it stays in their system for, you know, some period of time. There was a study that came out from the University of Sydney about three years ago that said that the average window of impairment for somebody who's using marijuana is somewhere between three and ten hours.
So if your individual is smoking marijuana on the way to work and then is under the influence of marijuana, they could be impaired, not suggesting they are, but they could be impaired for their entire work shift, you know, depending on the on the number of hours that they're going to be there. You could drop marijuana from your drug testing panel. Most drug testing laboratories tell me that it doesn't lower the price of the drug test if you drop marijuana from your panel. The price is still the same.
You're testing for five to seven major drugs, could be more. But typically, the most common drug test panels that employers test for is somewhere between five and seven drugs. And dropping marijuana from that panel doesn't necessarily, reduce the price. And in some cases, it could actually increase the price.
So, but here's some of the pros if you're considering. The cons is it's still illegal on a federal level.
Marijuana is a Schedule one controlled substance, which means that it's restricted for use even for medical purposes under federal law. And then look at the third and the fourth one. It lacks acceptable safety. We know that, right? We've there are a lot of studies on that. Increased errors in judgment, mistakes and the quality of the work.
More workers comp claims get filed because these individuals tend to be involved in workplace accidents more than those who do not use marijuana or don't show up high, or get high well on the job. Now, again, I could go back a couple of slides, right, to where I said it's not really a moral issue. It's not an ethical issue. I realized that even on today's, you know, webinar, there could be some people who are conflicted on that whole issue. I get that. There's a lot of information out there on marijuana, the pros and cons and how, you know, it affects the workplace and what rights do employers have. I'm going to talk about that specifically when I get to the policy section of today's presentation.
But the bottom line is it's a business decision. It's what's right for my business, right?
If I'm a small company doing, say, who knows, dollars five to ten million a year, and I have a judgment go against me because one of my employees was driving the delivery van and something very tragic happened as a result of that individual being high on the job. Well, that could put me out of business, right? That judgment could literally force me out of business. So those are important things to take into consideration when you are looking at the pros and cons of dropping marijuana from your drug test panel.
To me, it's simply a bad business decision to drop marijuana from your panel. I realize there could be varying opinions on that, but that's where I'm coming from on that. Now, part of today's presentation is this concept of creating a new vision. So I want to talk about that and take us in that direction.
But again, let me remind you, submit any questions that you have. Jen will take us through those, and to help us to to get through the questions at the end. And Brian will be joining us as well. So we'll have a lot going on there.
Please feel free to submit any questions that you want. Okay?
Today, I think it's not really a matter of whether or not you should conduct drug testing. I think it's it's the responsible, proper business decision to have a drug testing program, especially if you're concerned about safety in the workplace.
But it's more today about how you're going to test, who will be subject to testing, and when testing will occur. Okay. So all of that comes together to sort of form maybe, just a sort of a smarter approach to direct testing in today's age of legal marijuana in particular. So you look at the the the six major or main objectives for a drug testing program.
Let me take it from left to right. One, to maintain a safe and healthy, productive workplace. Okay? There's a lot in that one alone.
There's safety. There's the health of your workers and making sure that they're productive, that they're doing what you hired them to do in the most productive way possible. And then to protect employees in the company and customers and the public. Right?
If fifty percent of the workforce are substance users and are part of that statistic of eight thousand seven hundred dollars a year it cost to you on average, well, eighty five percent of your workers are not using drugs on the job or coming to work high on drugs or bringing drugs into the workplace to share with others. Right? Well, you have an obligation as an employer to protect their work environment as well. To promote awareness of the company's position, you definitely want to take a position that as a company, we do not support individuals being high or impaired by drugs while on the job.
To provide a meaningful deterrent, drug testing deters drug use. There are so many studies that have come out on that over the thirty five years that I've been in the drug testing world, but they are all consistently they're consistent in coming to the conclusion that drug testing deters drug use.
One of the studies that came out from the government years ago was on drug users' attitudes toward drug testing. And it was really interesting.
Excuse me. It was really interesting that forty percent of people who admitted to being current drug users who were employed full time, forty percent said they would not work for a company that conducts pre employment drug testing. So forty percent aren't even going to apply with your company if they know that you do drug testing. I think that's a good thing if you wanted to, you know, avoid hiring drug users. Thirty percent said that they were less likely to work for a company that conducts random drug testing. Now, random drug testing is an interesting form of drug testing, right? Because we're not accusing anybody of anything, but people get selected on a random basis.
And because they want to keep their job, they don't come to work high on drugs or they don't bring drugs to use while they're on the job. It deters drug use. And to ensure fairness in the process and the detection of substance abusers and tend to support the efficient operations of your company. So there are lots of others, right?
Every time we conduct our survey in the fall of employers' attitudes of drug testing and we ask them, what are the reasons why you conduct drug testing? The number one answer always by far is safety. We want to have a safe work environment. We believe that that drug testing helps us achieve that.
So we ask the question, why do you drug test? Safety is always the number one answer. And then we always ask, what are the benefits that you're realizing from your drug testing program? And as in an almost equal number, it's usually the eighty percent range, about eighty two percent say that the number one benefit they get from drug testing is safety in the workplace.
It increases safety in the workplace. Now the components of a comprehensive program include your policy, which reflects what the company wants to achieve with its drug testing program, who will be subject to testing, when etcetera. I've got a slide coming up on the next one.
The drug and alcohol testing program itself, when it will occur, how you're going to conduct drug testing, the employee education and supervisor manager training components, because that's critical. The government, again, this is a government study that came out some years ago, but they found that comprehensive drug free workplace programs that include not only drug and alcohol testing, but a written policy, employee education, supervisor training, and some type of an employee assistance program, or at least access to information for support, that they have a thirty percent higher success rate than programs that just rely on drug testing. So when you look at it, this is sort of simplifying it into four different quadrants there. But those are the the main four components of a of a comprehensive sound program. Now I mentioned the policy.
We could do a whole webinar just on the policy. So I'll kind of skim through this. I'll leave it up here and you're going to get all of this in the recording as well. But your policy follows a certain pattern. There's a blueprint to putting together an effective drug testing policy. And I want to point out the second bullet from the last. I put in there state amendments.
That's because the most common question we get asked at the current consulting group, and we write dozens and dozens of drug testing policies every year.
The number one question we get is which state law do we have to comply with? We're in twenty five states headquartered in Texas, let's say, and we want to know which one we base our policy on. Well, the answer to the question is you have to comply with all twenty five states and every state in the United States has its own drug testing law or regulations or case law. And that could be different depending on workers comp regs or unemployment comp regs, marijuana laws that often have some type of drug testing language in them, and of course the drug testing laws themselves.
Not every state has a drug testing law, but many of them do have mandatory drug testing laws or like my home state of Florida, a voluntary drug testing law that offers me a five percent discount on workers compensation premiums if I drug test in accordance with the guidelines provided by the state. There are all kinds of laws out there, but your policy, if it's just sort of a one size fits all policy, you haven't taken into account the state laws that apply to you, then you're very likely ninety nine percent chance that your policy is out of compliance with at least some of those states. So
for example, California doesn't have a mandatory drug testing law, but it has a lot of case law. And part of that case law places restrictions on random testing when employers can conduct random, random testing. Now that doesn't affect DOT mandated testing. That's a separate issue.
State laws do not preempt, the DOT regs. They always come first. But if I'm in Texas, for example, and Florida, two very employer drug testing friendly states, I don't want to base my entire national program on the restrictive nature of the California laws or the case law. I want to base it on the laws that apply in each of those states, which you're required to do anyway, so that I can get the most out of my drug testing program and not limit my entire nationwide program to the most restrictive states in the country.
Okay. So those state amendments are very important to your program.
So the five options to realign your policy going forward, the form of test to conduct, who's going to be, who's going to, who to test, who's going to be subject to the testing, and what the consequences will be. And those kinds of issues are influenced dramatically by the state laws that apply to you, where some states may allow you to terminate on a first time positive. And there may be other states that you're in where you would be required to at least offer some type of second chance agreement, maybe not pay for for an EAP or for counseling, but to give the individual an opportunity to participate and and successfully complete such a program, which drugs you're going to test for and what type of testing you're going to use. So we're going to talk about testing technologies here. And Brian, you feel free to jump in. We're starting to get into Brian's territory here a little bit. So Brian, feel free to jump in at any point.
Choosing the drug testing method that's right for you depends on why you do drug testing. Well, you know, what do you hope to get out of it? The most common testing methods are urine, hair, and oral fluid. I've got blood listed there because there may be circumstances where you draw blood to determine whether there's drugs in that person's system.
Many states do not allow employers to use blood as a drug testing method, but urine, hair, and oral fluid, very common, could be lab based, could be a rapid result, testing method, Depends on what your needs are, but you could go with either a rapid test with urine and oral fluid or a laboratory based test for urine, hair, and oral fluid. And actually, Brian and I were at a conference last week where one company was actually demonstrating a rapid hair test that they've, come up with the technology that they've come up with and that they're using in the criminal justice market, but they're introducing into the workplace market.
Now we won't go through all of this. This is a lot of information here, but it's for your for your post webinar perusal here. But these are the characteristics of urine, oral fluid and hair side by side. Let me just give you to pick out one thing from this as an example, right?
So window of detection. You can see that with different testing methods, the window of detection, the period of time in which drugs will be detectable in that sample that you've just drawn for a drug test, whether it's urine or fluid or hair, differs significantly depending on the testing method. Right? Three to seven days could be longer for chronic marijuana users for urine.
Marijuana becomes detectable in an oral fluid sample immediately after use. And the window detection stays open for a shorter period of time, depending on the drug and how much the drug is in the system. And the cutoff level of the drug test that you're using could be up to twenty four hours, thereabouts. And then with hair, there's a lag time after usage before drugs become detectable in hair about seven to ten days, but then it remains detectable in that hair sample for up to ninety days. So depending on why you do the drug test, you would choose the testing method that's more likely to help you achieve your objectives. Anything to add to that, Brian?
Brian Yeah, Bill. So thanks. The only thing I would add is that one asterisk on the detection window, is there to point out that there's a a little bit of a difference between lab based oral fluid testing, for marijuana. That is typically twenty four to thirty six hours. Whereas if you're using an instant oral fluid drug test, you're really looking at more of a workday use, something in the six to ten hour, timeframe because the cutoffs are typically higher for a rapid instant oral fluid test. They just can't get quite down to the lower cutoffs that you see with a lab based test. And that's noted down below there in the table.
Yeah. And thank you, Brian. And you'll notice there's, you know, there's other line items of information there. So if you have a question about a specific one, feel free to put it in the Q and A section and we'll try to get to it before today's presentation is over.
I do want to point out though there at the bottom, you see SAMHSA regs. This the Substance Abuse and Mental Health Services Administration, SAMHSA, has put out regulations for lab based urine and lab based oral fluid testing. There is a proposal for hair testing as well, although I don't know how close we are to getting to seeing those regulations finalized, but neither for urine or oral fluid is rapid testing permitted under the federal regulations. It's permitted in most states for non DOT drug testing purposes, but the SAMHSA regulations have to do specifically with lab based testing.
Now there's a lot on this screen here. These are the ten advantages that we like to point out when it comes to oral fluid testing.
And we've talked about some of it, but less invasive in the collection process is very easy to collect. You don't have to secure a restroom, turn off the hot water, put blue dye in the toilet or anything like that. Very easy to collect. The observer or excuse me, I call them observers sometimes.
The collector who's really sort of observing the whole thing with the donor are in front of each other the whole time. It's one hundred percent fully observed. So many of the common drug test cheating methods with urine testing don't work with oral fluid testing because for one thing, it's one hundred percent observed. And so there's no opportunity then for the donor to swap a sample out or to add something to the sample, etcetera, which sometimes happens, unfortunately, with urine testing.
You can test for all the same drugs with urine, with oral fluid as you can with urine, as Brian was talking about and from the chart below before the ability to detect recent use within minutes after somebody has smoked a joint, for example, on their lunch break, that that marijuana is going to be most likely is going to be present in their oral fluid sample. Whereas with urine, there's about a six to seven hour lag time before the metabolite becomes, detectable in the urine sample.
And as we said, a lag time of about seven to ten days with hair testing. Now, the windows of detection are different than the, you know, when the drug becomes detectable. So oral fluid is the only government approved drug testing method for recent drug use, through the the SAMHSA slash DOT oral fluid testing. And again, that's just for lab based testing.
And then I went down to that, that bottom one, because this comes up a lot. Oral fluid testing can save you money. There's lots of different ways in which that that can occur. I'm not going to go into a full ROI explanation here.
But if you add it up the different ways in which a drug test costs you money, including the time it takes to send an employee and perhaps a supervisor to an off-site collection facility, a patient service center, an occ health center, etcetera, and the lost productivity from them being gone somewhere on average between two and three hours.
And being able to do that oral fluid test on-site within minutes after an accident occurs, for example, or somebody is demonstrating the outward signs of being under the influence. And you can do that test right there without having to use the two to three hours of their work time, sending them to an off-site facility. You can see that factors into your cost savings as well. Lots of different ways to look at that, but it depends on what your needs are. So you may want that, the the ability to cut that cost to improve productivity, etcetera.
But again, depending on why you're drug testing, you'll choose the testing method that's more likely going to help you to achieve that those objectives. Like, for example, if you're you're looking at hiring a lot of people all at one time, it's a very competitive hiring market. You're going to conduct these drug tests on-site with oral fluid and get a result right away from a rapid result oral fluid test. You could be making hiring decisions before the end of the day, as opposed to sending that individual to an off-site facility and hoping they show up there and then sending that result or that sample to a laboratory and waiting a day to three days to get a result back.
If you know, fast hiring decisions are important to you, then you're probably going to go with rapid oral fluid testing, just as an example. Now, this next slide I'd like Brian to to walk us through because it's very interesting in terms of what you're detecting in a urine sample versus an oral fluid sample. So Brian, take it away.
Yeah, sure. So just a real quick description of, excuse me, parent versus metabolite. Parent drug is really what you're getting when someone ingest the drug initially. The THC, marijuana, or cocaine or or drug goes in as the parent, and it gets into the bloodstream very quickly as the parent. And whereas with a metabolite, that is the breakdown product. That's what you find in a urine sample. So by the time it makes its way through your body, it ends up getting broken down into metabolites.
So what some of the newer laws are are looking at because of the legalization of marijuana, and this happened in California and Washington in twenty twenty four. These laws were enacted where they don't, you basically can't, take action on an employee for a drug test for marijuana that tests for the metabolite because it's showing past use and marijuana is legal in those states. So you're not you don't want to look at the metabolite, which is what you pick up in urine. You want to look at the active parent drug, which is also referred to as the psychoactive form of the drug. That's the form that gives you the high. And so it's another kind of value add on where oral fluid plays a role. Oral fluid is detecting that psychoactive form or the parent THC.
And, really, that's the main difference. When you're dealing with hair and with oral fluid or with urine, you're really picking up that non psychoactive metabolite, of marijuana.
Yeah. And if you look at the footnote at the bottom of the slide here, this issue is important in states like California and Washington that have passed laws that restrict how employers test for marijuana. So in California, employers may not use a drug testing method that only detects the quote unquote non psychoactive metabolite of cannabis for for pre employment testing and post hire testing. So job applicants and employees.
In Washington, they have the same restriction, but it only applies to pre employment testing. So very important distinction. So in California, you can and Washington, you can still test for marijuana, but you have to use a form that detects the parent drug. So as Brian was explaining, that would be oral fluid testing most likely.
Right? Some some, potential with breath THC. But if you're looking at an expanded panel, you're testing for marijuana, cocaine, heroin, etcetera. Oral fluid testing is is your only option in California and Washington if you want to continue testing for marijuana.
So in our twenty twenty four survey of employers, we asked the question, do you have no, this was a excuse me, a survey of drug testing providers. We asked them, do you have clients in California and Washington that have switched to oral fluid or breath testing?
Very interesting. Sixty three percent of our testing professionals. We have clients in California, sixty three percent said, yes, they have had clients switch to oral fluid testing, meaning that a very large percentage of their clients in that state in California and Washington, both states want to continue testing for marijuana. And they have that option to switch to oral fluid testing and continue to test for marijuana.
Thirty percent said no, not neither. Right. And eight percent said yes for breath. Now breath is a very new technology.
There's lab based breath testing just for cannabis available. As I mentioned, if you're looking at a broader panel of drugs, including marijuana, but also cocaine, heroin, etcetera, amphetamines, phencyclidine, etcetera, you're going to use oral fluid testing. So employers in California, you're not left out there, you know, on your own wondering, you know, what can we ever do to test for marijuana again? You do have that because both states allow oral fluid testing and both states allow both lab based and rapid result or point of collection oral fluid testing. Now, in I mentioned in earlier that in October of twenty nineteen, SAMHSA came out with final regulations for lab based oral fluid testing of federal employees. It didn't have to do with the private sector.
May second, twenty twenty three, DOT came out with final regulations for lab based stroke fluid testing for DOT regulated employers and employees. Right? They articulated the reasons. You can see all the bullet points there. But this is an interesting development because the only drug testing method that was allowed under the DOT regulations for more than thirty years was lab based urine testing. For the federal government to do something like this is a huge, huge development.
Now we're still waiting for at least two laboratories to become certified under, you know, the requirements or conditions of the DOT SAMHSA regulations to test for oral fluid testing. There are labs that test for oral fluid now. Outside of the DOT regulations, you have lots of options.
But for DOT mandated drug testing, we're still waiting for at least two laboratories to be certified for oral fluid testing. And there are collectors that are being trained. There are MROs that are being trained, medical review officers. There's a lot going on right now to make sure that every all the the aspects of the drug test, the professionals in each of those categories is ready to go.
But we're the main holdup right now, We think we're getting close, but the main holdup right now are two certified laboratories. So that's in the works. And we won't spend a lot of time on this, but there are differences, as Brian was pointing out, on lab based oral fluid testing versus POCT oral fluid or rapid result oral fluid testing. As I mentioned earlier, you go down on the on the right column, under rapid oral fluid testing, the second to last bullet, quick speed to higher.
You know, that may push you in the direction of rapid result oral fluid testing if that's your priority. If you're going to if you're considering oral fluid testing to at some point in the very near future comply with the DOT regulations that will, you know, allow oral fluid testing very soon, then you're looking at a lab based test. Right? And there there are differences in the cutoff levels and the window detection, etcetera, between the two technologies. But what I wanted, I wanted to bring Brian back in on this next slide. Brian, if you could just kind of describe these different types of products that are on the market.
Sure, Bill. The, the top three are really lab based tests.
The intercept test, of course, in something I, near and dear my heart, have been involved with for twenty six years at OarsSure, is actually being phased out. And, the the dominant sort of device on the market right now is, the Quantasol one and QuantiCell two devices, which are really made by Abbott, a division of Abbott, and, being offered by the sort of the major laboratories. And the difference between the two of those is the one is, for non regulated testing, and the two, QuantiCell two is designed to collect two samples.
And so basically having a split specimen where you can take a single sample and divide it into two.
So, so that's the top level and and, as as regulated testing with oral fluid becomes more prominent, you'll hear the term quantisol quite a bit as quest and some of the other labs will be offering that device, are already offering the quantisol one. In fact, the ones on the bottom are some of the rapid choices out there. Oral tox is a great device from Premier Biotech.
It's a rapid oral fluid drug test, FDA cleared, has some really nice features to it. The Heal Gen rapid oral fluid test is another one that's a very nice sturdy test, works really well. And then the t cubed, t square rapid oral fluid test is another option. All of them, perform very nicely. And and they do have differences and, nuances between them. They're all designed to collect an oral fluid sample quickly, go into a container that then is visually read from the device itself.
One of the nice things about that one on the left, the oral docs, is that if you do get a presumptive positive, that sample can be packed up and that that whole device can be sent into Premier Biotech and be confirmed from that, device itself. So you're really testing that original sample that's been collected. The other ones that are on the market, involve the collection of a second coral fluid sample if you do get a if you do need to do a confirmation test, which just adds another step and another additional cost.
But certainly, those can be used for that purpose as well.
I want to point out that at the Kirk Consulting Group, we have a weekly podcast. Everybody's got a podcast. Right? But we have a weekly podcast called Currently Speaking. And Brian and I have done, I think it's sixteen or eighteen or I don't know what we're up to.
Eighteen. I think we're up to eighteen, Bill.
Okay. We've done eighteen podcast episodes on oral fluid testing with me interviewing Brian on all the various aspects of oral fluid testing. So they're they're short podcast episodes, usually somewhere between twelve and fifteen minutes, and they focus on very narrow topics each time. So you can go to current consulting group dot com and find all of those episodes there.
They're easy to listen to. If you want to really sort of delve into the details of oral fluid testing, I think you'd find that very interesting. Now, where is it best suited to do oral fluid testing? Well, we mentioned states where testing for marijuana is not allowed with urine.
That's California and Washington. We think other states will follow suit there, but we haven't seen any legislation. We track all state legislation on a monthly basis, and we're not seeing anything like that yet. California, Washington went into effect January first, twenty twenty four.
So it's still fairly new. The pro marijuana people who are behind these, these two laws in California and Washington, probably looking to see where they would introduce legislation next. If you're concerned about marijuana use on the job or fluid testing makes a lot of sense because of the ability to detect very recent use within minutes after somebody's used, marijuana.
And and you can see the other, the other, possibilities here. I would add another one right at the bottom. I got, you know, post accident, pre access. If you're coming on to the job before you start, you you get tested.
This is particularly a good testing method that's allowed in almost every state, for contractors who are coming onto somebody else's worksite and they need to certify that they're not under the influence of drugs when they before they start their shift. But I would add at the bottom under random reasonable suspicion and follow-up testing, I would add pre employment testing as well, specifically, because it's really the shorter window of detection is not giving you a lifestyle view of that applicant's drug use history, but it is telling you whether or not that individual has drugs in their system now.
And if hiring somebody immediately that day, making a same day job offer is important to you, then it probably makes sense. So, you know, where where, you know, what are the options? Well, detects recent use, very important. Something that covers the entire window of impairment from marijuana.
I think that's critical, right? So I said earlier, the University of Sydney, three to ten hours is the, you know, I think you'd look at eight different studies from around the world, and they concluded that the window detection, depending on the amount of marijuana used, the functions that you're asking the individual to perform, etcetera, all of these different factors determine the window of impairment. But for marijuana, it's usually between three and ten hours. So with urine, you're missing that first six to seven hours, remember, before the metabolite becomes detectable.
And then with with, breath, you're only getting about a one to three hour window at the front end. So if you're looking for something that covers the entire three to ten hour window of impairment, that's oral fluid testing. Easy to administer so that it could actually be done at the workplace by employees that have been trained to administer the test. Very easy.
And it virtually eliminates drug test cheating efforts. As I mentioned before, the donor and the collector or slash observer of the test in some ways, they're right there in front of each other the whole time. So there's really little opportunity for an individual to to cheat using some of the traditional methods. And I want to kind of breeze through a few slides here so we can leave ample time for Q and A because we're at about the forty five minute mark in today's presentation.
But you can see some great steps that you have to go through here before you get started with your oral flu testing. But I want to just emphasize number one, before you even update your policy, make sure you understand what your drug testing objectives are because why you test will determine how you test. And I think or for testing probably works for most employers, but you want to make sure that you're picking a method that's going to actually help you achieve your direct testing objectives because you're going to spend money on it. Of course, I think it's money well spent, but but you want to make sure that you're increasing the chances of achieving your objectives by choosing a drug testing method that's right for you. As I mentioned earlier, one size fits all policies really don't work, especially in the age of legal marijuana. There are marijuana laws that have all kinds of little nuances in the language that can affect the workplace.
For example, nondiscrimination, language that would prevent you as an employer from discriminating against a legal medical marijuana user or some an employer being required to show some evidence of impairment in addition to a positive drug test result before the employer can take adverse employment action. Lots of things. And those those get written into your policy, as I mentioned, on a state by state basis. But this, we won't go through this at all, but this is just a chart that shows you the different types of marijuana laws that are out there and whether they have accommodation language built into them or nondiscrimination language built into them.
So, you know, we can answer specific questions about any particular state. But this gives you an idea of the the number of states that have this type of language written into them. And here's a little bit more information on that. I want to get to this slide, though, on the, no, it's the next one on the atypical state laws when it comes to marijuana.
We talked about California and Washington. We've done a lot on that. Most people think that New York prohibits marijuana testing entirely, but there are a few loopholes in the Department of Labor regulations that affect marijuana testing that would allow an employer to continue to test for marijuana under very limited reasonable suspicion slash post accident scenarios. And so there are ways that you can test for marijuana to protect your rights as an employer or to contest perhaps a a workers' comp claim in New York.
Many states allow employers to contest a workers' comp claim if they've got a positive drug test result that the state would consider as evidence of possible impairment. Now, Nevada is interesting because it prohibits employers from refusing to hire based on a marijuana positive. So you're testing applicants, and that applicant tests positive for marijuana. You can't refuse to hire that individual solely based on that marijuana positive.
There would have to be other factors that you could you could point to for the reason why you didn't hire that individual. Nevada is the only state specifically like that. There are the states that are very restrictive. As I mentioned, California, Washington, Oregon, Colorado, Illinois, New Jersey, many states have restrictive, language in their marijuana laws.
So always good to look that up, but also very important to include it in your drug testing policy so that you're doing what you can with your policy, but you're in compliance with the laws that apply to you. There are no states that prohibit you as an employer from prohibiting individuals from being impaired by marijuana on the job, possessing marijuana well at work, or using marijuana while on the job, including during work breaks, lunches, etcetera.
Every drug testing policy and directory workplace policy should include this language in it so that it's very clear to your employees and any job applicant that takes a look at your policy of what the company's position is when it comes to testing for marijuana or individuals being at work under the influence of marijuana. There's a lot of information on this slide too. I just want to go to the last one and point out again that DOT requires employers that are covered under the DOT regulations to test for marijuana for, they call it a five drug test panel.
It's really seven drugs in my opinion, but they sort of lump some of them together, but marijuana is one of them. And right now nothing has changed at the federal level to change that. So even if you're in a state where you're a little bit nervous about testing for marijuana, because of its legal status in your state, if you're covered under the DOT regulations, you must still test for marijuana for pre employment, post accident, reasonable suspicion, random, etcetera. I think it's imperative that you keep your employers well educated on these issues and what your policy says, particularly your supervisors and managers.
You're not asking them to be drug testing experts or diagnose somebody's substance abuse disorder, substance use disorder, but you are asking them to be able to judge someone's performance. Look at, identify aberrations and if necessary, according to your policy, conduct a direct test. And so that kind of brings us to the end here. There's some concluding remarks, but I know we've got some questions.
I'm going to leave it on this slide here that shows the services that we provide to McGriff customers, so that you can take a look at that. But if you have any information, there's a contact slide coming up on the next one. But let's go back to questions and answers now.
Thank you, Bill. We've got a bunch of questions from our audience. Just wanted to also to, repeat that we will be recording and sending along the presentation after this, webinar today. So any of the questions, if you had to hop off early, they will be sent along as well. And if you have specific ones that will not get answered during the q and a live session, we will follow-up separately with you with those answers.
So the first one that we have here, Bill, is we are in health care and had a nurse present her medical marijuana card at her drug testing. We did not hire her for a safety sensitive position. What are your thoughts on this?
Well, I'll say this. There are certain industries and professions where it gets tricky like this one. Nurses and doctors.
Usually in the healthcare profession, especially in hospitals, where doctors may, well, nurses and doctors are licensed, they have to maintain a drug free lifestyle in order to maintain their license. They're usually tested for a very expanded broad panel of drugs that goes beyond the normal, what we call SAMHSA by drugs.
And as an employer, you still have the right to have written into your policy that employees may not be under the influence of any substances, but you can be particular if you want in state marijuana, because we're talking about a medical marijuana user here, that they can't be at work under the influence. They can't bring the drug with them, even if they're a registered car carrying medical marijuana user. They still that does not give them the right to be under the influence of marijuana while on the job, particularly in what could be considered either safety or in this case, security sensitive functions or jobs.
So, but again, to be more specific to the person asking the question, I would need to look at the state laws that were because it would be different by state laws and it could be different by professions. That's a very general answer. But I would I would, you know, you could talk to one of our attorneys here or one of your own labor attorneys. But I would get specific in terms of the state that we're talking about and whether or not that state has any specific, limitations in the marijuana law when it comes to, testing individuals who are registered medical marijuana users.
Okay. Thank you for that.
Another question.
This employer has DOT covered employees, and those that are not DOT commercial drivers, do which panel should they be testing their employees with? That five DOT panel, is that good enough for the whole program, or Yeah. Should they have separate ones? Okay.
Yeah, it could be. I mean, for one, the DOT employees, the DOT covered employees must comply with you on their behalf must comply with the DOT regulations.
Outside of the DOT regulations, depending again on the state, because you could be in some restrictive states like along the East Coast or the West Coast, there may be some restrictions on which drugs you can test for and under what circumstances you can conduct a test. But generally speaking, many employers use what we call a DOT lookalike program, where it mirrors the DOT program even for their non DOT covered workers. But again, I would be very careful to sort of make that my final answer until I knew what state laws we were we were talking about.
Okay. So I'm hearing state laws are very important.
Here we go. Here's another one.
How do we test for impairment?
I I believe you may have answered this in the presentation, but there's a few questions on this. How do we test for impairment? They could have smoked a few days ago.
But would that still show up on the test? How do you tell if there's impaired? What's the best test for this?
Brian, why don't you take that one?
Sure. So, well, I mean, in general, the chemical test or an immunoassay, the types of tests we're talking about here, none of them really test for impairment per se.
So there there are some new methodologies out there that will detect impairment, that are that can be paired with, such a such things as an oral fluid test, which is a very good recent use test. But even that's not impairment.
There's a a test from a company, called Gaze, which is a a sort of a headgear format that you put it on, and it looks at the all the, common signs that, in eye movement that are used when you're doing a roadside sobriety type checkpoint. And these folks have really kind of reduced this to a test format that, does allow you to to link to the most some of the most common substances out there. So it's the closest thing to an impairment test that we've seen in recent years that has come onto the market.
Of course, in and of itself, to just use that and say this is your test is is not, necessarily a great idea. You wanna combine that with other things in your program, such as the supervisor training, looking at signs and symptoms, looking at the behavior of the individual, running such things as a gaze test, then combining it with a confirmatory method such as an oral fluid test and a confirmation screen. If you do all those things together, now you have something that will really hold up a heck of a lot better than just saying you did one test or your supervisor observed some symptom that's kind of like a, an impairment sign. So it's really putting a lot of things together.
And again, as Bill said, with the state that you operate in, looking at that state law and making sure that, that that holds together for the state that you operate in. All those things are important.
Yeah. And let me add one thing, which is that we have three attorneys who work at Current Consulting Group and Yvette, who does most of the domestic law. We also cover international. But she's always, you know, wagging her finger at me to remind me that we need to point out that a drug test doesn't prove that somebody's either legally or scientifically impaired. We don't make that claim. Nobody in the industry should make that claim, because the test itself, as Brian was pointing out, doesn't prove that somebody's impaired. It just it does it can prove that they've got drugs in their system, but not necessarily that they're impaired.
Thank you.
Alright. I have I'll I'll lump a few together that I have on oral testing, but I'll start with this next one.
In recent cases, which employers will help have there been any cases in which employers were held liable because they didn't test for marijuana preemployment and then the employee caused an accident and turned out to be positive on a post accident test.
Should they be testing? I guess the question is, should they be testing on both preemployment and post accident?
Yeah. So we don't I mean, so, you know, you can see on the screen here, Current Compliance, that's our state law database subscription service. And it includes lots and lots of laws on a state by state basis. We don't track that type of case law because usually there are years in the works. Right. And what we're talking about here, this question in particular, but the whole marijuana issue and whether somebody should test for marijuana, etcetera, is such a sort of a new area of law because of these marijuana bills that have been passed in so many states now, whether medical marijuana or recreational marijuana.
We believe, however, and and go back to our employer survey that and I shared a little bit of it earlier without the stats, but there's an interesting stat in our employer survey that comes out in the fall every year in terms of why employers won't why some employers decide not to test for marijuana.
And one of their big reasons is we don't want to get sued, as I mentioned earlier, from acting on the result of a positive marijuana test. If it turns out that somebody, has a medical marijuana card and now we didn't give them a job and they decide to sue us. But on the other end of that spectrum is what I talked about earlier, respondent superior laws that hold the employer responsible for the actions of their employee when they're functioning within the scope of employment.
This is all sort of evolving.
So I don't have a specific answer for you, but if you had a particular state you were concerned about, we could tell you what the law in that state says. And that would give you kind of a clue as to what the likelihood is of somebody deciding to bring a lawsuit because of that.
But it is an area of the law, I think, anyways. And I could, you know, let Yvette weigh in on this if we want to provide you with a written response. I think we're going to see an increase in those types of lawsuits going forward because employers will will be held responsible for not making what the law refers to as a good faith effort to make sure that their workers and their workplaces are drug free and as safe as possible.
Thank you. And then I'll I'll try to group together our oral testing ones for our last question here before we end up today, and then we'll respond to all of the other specific ones after this.
So can kinda couple parts here, I'll summarize them best.
Can, will oral testing stand up legally for random post accident reasonable suspicion and preemployment and post accident? And then when do you send them for, urine test or a a more, inclusive test afterwards?
I Those oral tests.
I'm not sure I understand the nature of the second part of the question. I'll but, Brian, let I'll take the stab at this, and, Brian, feel free to jump in. Sure. I think oral fluid testing has always been, for many, many years, a viable alternative testing method that is legal in almost every state. I mean, legal is not the right way to put it permitted in almost every state under almost all circumstances.
Excuse me.
But in particular, since the, release of the SAMHSA regulations for lab based oral fluid testing in October twenty nineteen, the validity and the integrity of oral fluid testing, If there were any questions, they were put to rest when the federal government came out with those regulations. In fact, let me read just one part of that, that deal or that SAMHSA regulation that came out on October twenty fifth, twenty nineteen. It said, quote, the scientific basis for the use of oral fluid as an alternative specimen for drug testing has now been broadly established and the advances in the use of oral fluid in detecting drugs have made it possible for this alternative specimen to be used in federal programs with the same level of confidence that it has been applied to the use of urine. I think that really sort of puts to rest any questions about the validity of the testing method, whether you're using it as a preemployment test or a random test. But anything to add to that, Brian?
No. That's that I mean, just that's perfect, Bill. I I think just if there was any confusion, oral fluid is a stand alone methodology that will hold up on its own in court, has held up in many cases, that where it was challenged. And so it's not an alter it's an alternative methodology, not meant to be implied that it's, you know, has has to be followed up. In fact, you wouldn't want to include urine screening with an oral fluid test because you, you, it could ultimately lead to different results just because of the window of detection. So it's a standalone, valid, highly defensible methodology.
Great. Thank you. Thank you so much, Bill and Brian, for this wonderful presentation and information. I know we've got a bunch of questions that, I'll provide to you after this, but I would like to just thank you on behalf of McGriff again for, your presentation. And for those, participating today, thank you for making this a very interactive presentation with all of your questions.
Again, the recording and the presentation will be emailed out afterwards.
Thank you so much, and have a wonderful day.