Drug testing guidelines issued to Colo. employers after Amendment 64

GRAND JUNCTION, Colo. (KKCO) – The passage of Amendment 64 has left many employers in Colorado wondering where they stand with drug testing employees.

To help businesses understand the legalities, Mountain State Employers Council has developed a guideline for employers to help them develop policies about Amendment 64, something local Chamber of Commerce leaders say will be helpful for employers.

“We have a lot of employers who have a lot of questions about this because it’s not as clear cut as it with being under the influence of alcohol,” said Diane Schwenke, executive director of the chamber. “We know that if we were to have a certain level in your bloodstream of alcohol, you’re under the influence. We don’t have that same matrix to use with marijuana.”

Here are the MSEC’s four points to remember:

• An employer, whose supervisors are trained in reasonable suspicion of drug use and who require an employee to undergo a urinalysis, saliva or blood test after documenting signs and symptoms of drug use, will have a stronger chance of surviving a legal challenge if the employer terminates that employee. (This assumes that the worker tests positive for Tetrahydrocannabinol [THC], the active ingredient in marijuana).

• Colorado’s legal off-duty activities law (CLODA) prohibits employers from terminating employees for legal, off-duty conduct. Exceptions, however, are provided in law.

• If a worker is in a safety-sensitive occupation, employers may have a stronger legal basis to terminate employees who test positive for marijuana. A worker who is impaired through the use of marijuana in these occupations creates risk for the employer and other workers, which can fall under CLODA’s exceptions.

• CLODA refers only to employees, not to job applicants. Thus, pre-employment drug screening remains a lawful practice and may continue to be conducted by employers.

If you have any additional questions regarding drug testing employees, whether in Colorado or another state, contact us for assistance. We’ll be happy to help!

UK teachers strike over random drug testing policy

Teachers at an independent special school in the UK are on strike after one of them was asked to take a random drugs test. Eleven teachers at the Alderwasley Hall School, which is a residential centre as well as a school, took action last week.

Their union, the NASUWT, says one teacher was suspended after refusing to take a test, while the union also says other members of staff have been threatened with dismissal if they were to refuse. Chris Keates, the general secretary of the NASUWT, said: “It is simply unacceptable for an employer to impose a policy of drug and alcohol testing which we believe is unjustified and unlawful and attacks the professionalism of the teachers at the school.

“There is no basis whatsoever for believing that dedicated and committed teachers at Alderwasley Hall School are misusing drugs or alcohol. This is simply a case of an employer abusing its position and flagrantly disregarding the rights of its employees.”

The union says the school’s policy on drugs tests is unlawful under human rights legislation because it allegedly breaches a person’s right to respect for their private life, while advocates of drug testing suggest those who are clean have nothing to fear.

Government guidelines say employers have to have consent from staff they want to test for drugs and that tests should be random, and it seems questionable that it’s a group of teachers that are taking this particular stance. Children are the one of the most vulnerable sectors of society, and we should be taking every precaution possible to ensure their safety. On top of that, the fact that the children at this school require special needs means that protection and support is even more of a necessity from those who care for them.

Florida welfare drug testing law heads to appeals court

A federal appeals court in Atlanta will hear arguments in a legal challenge to a Florida law requiring welfare applicants to pass a drug test, and the ultimate outcome could affect similar efforts in other states.

Florida’s law, adopted in 2011, required welfare applicants to pay for and pass a drug test to receive benefits. It was in effect from July through October last year before it was temporarily blocked by a federal judge who said welfare drug testing may violate a constitutional ban on unreasonable searches and seizures.

Florida has argued that Temporary Assistance for Needy Families, or TANF, benefits are meant to ensure family stability and child welfare during times of financial crisis and to prepare parents to get and keep a job so the assistance is temporary. The state argues drug use by recipients undermines both those goals. ”TANF dollars must be spent on TANF’s purposes — protecting children and getting people back to work,” said Jackie Schutz, a spokeswoman for Florida Gov. Rick Scott.

The ACLU argues drug testing is considered a search under the Fourth Amendment to the Constitution, which protects against unreasonable searches, and filed a lawsuit challenging the law.

After the judge temporarily blocked Florida’s law, that state was force to retroactively pay nearly $600,000 in benefits to thousands of applicants who failed or refused to take the drug test during the four months that the law was in effect. Federal law does not prohibit states from testing welfare recipients for use of controlled substances or from sanctioning recipients who test positive.

“What has held some states up is the constitutional issues around suspicionless, random testing,” NCSL policy analyst Rochelle Finzel said. “States have struggled with getting around some of those constitutional issues and implementing laws so that they’re not violating people’s rights.”

Legislatures in 28 states this year and 36 last year have considered proposed legislation requiring drug testing for at least some welfare recipients, and they will likely be watching to see how far judges are willing to let the laws go.

Drug testing for jobs: Employer’s guide

Drug testing for jobs is a commonplace occurrence in this day and age, with many employers implementing drug testing as a key part of their employment screening policy. Drug testing prior to an employee starting an employment contract reassures company management that their workforce is sober, and will be a productive and effective team.

But employers might be asking, why drug test employees? Why not follow your gut instinct, or rely on the interview to cast judgement?

Well, in truth, that’s your call to make as an employer. But is it worth the risk if you get it wrong?

Here are some drug screening facts to consider when making your decision:

•  The average costs of a bad hire may equal 30% of the first year’s potential earnings.
• According to statistics on drug abuse by American workers, workplace drug and alcohol use costs U.S. businesses an estimated $100 billion each year.
• The United States Department of Labor estimated that of the 17.2 million drug abusers in the US, 12.9 million are employed either full or part time.
• Statistics show drug and alcohol abusers to be ten times more likely of taking time off work.

Increased drug screening implies economic recovery

According to recent data from the employment screening industry, the economy is on the recovery. Increases in drug tests across the country imply that employers are most definitely starting to bring in new staff.

“Employers are beginning to hire again,” said Gordon Basichis, Co-Founder of the Corra Group. “[Employment screening businesses] are seeing increased orders as well as inquiries from new or prospective clients who…are up and running and wishing to streamline their employment screening process.”

“We are seeing more requests for drug tests” said Basichis. “Even with companies where drug tests are not required for industry standards or compliance purposes,” employers are making sure their job candidates are clean and sober.

“In healthcare, the defense industry, or in trucking and transportation, you could expect that drug tests would be added to the screening package. But now even retailers and manufacturers are requesting drug tests for their employment candidates.”

Our post last month showed how employment, particularly in the private sector, is on the rise. This increase marked the twenty-fifth consecutive monthly gain in private employment, as measured by the ADP report.

Following the previous report, which stated that almost a quarter of a million jobs had been added to the US economy, this is another step in the right direction. Background screening directly correlates to levels of employment and, according to recent information, things are looking up.

We will likely get a better vision of how the next year or so looks by the end of Q2 2012, but for the time being, the outlook seems to be positive – for employers, for applicants and for the economy.

New payroll tax deal would increase drug screening

Under the payroll tax deal sought by congressional negotiators, drug screening for those on welfare would see a significant increase. States would be permitted to screen claimants who lost their jobs because they failed or refused a drug test and people seeking new jobs that generally require drug tests.

According to a 2006 survey cited by Republicans, 84 percent of employers required new hires to pass a drug test. Federal law currently does not allow states to deny benefits for reasons other than misconduct, fraud or disqualifying earnings – so this move is a significant one.

I’m glad that it’s in there,” Rep. Jack Kingston (R-Ga.) told HuffPost in an interview. Kingston was the first Republican in Congress last year to propose drug testing for those collecting unemployment. “I think that it will be a helpful tool for states.”

The drug screening proposal is part of a larger bill, in which the maximum duration of unemployment insurance would gradually fall from 99 weeks to 73 weeks. While that does seem like quite a drop, if no bill was passed the the longest time people could claim benefits would abruptly drop to 26 weeks at the end of February when federal unemployment programs are set to expire.

This could affect nearly 1 million people who have been out of work for six months or longer.

The drug screening legislation will no doubt be a welcome addition for many, who are justified in claiming that welfare recipients should not be an exception to the drug screening rules that many employed taxpayers are subjected to.

Nonetheless, there will always be critics. Particularly when it comes to such a controversial topic. Critics claim that drug testing welfare recipients is simply not a cost-effective measure and not a valid use of taxpayers dollars – with money saved being only a fraction of that which is spent on the tests.

What do you think? Should welfare recipients be drug tested?

Tennessee wants drug testing for all who receive benefits

Tennessee state Senate Speaker Ron Ramsey says he wants to press ahead with legislation “to make sure that we’re drug testing practically everyone getting any kind of government benefits.” This means that Tennessee joins a long list of states who have/are planning to implement drug testing for welfare recipients.

But it doesn’t stop there.

He also said tentatively that it’s “fine with me” if corporate executives whose businesses are awarded millions of dollars in state taxpayer cash as incentives to create jobs in Tennessee are subjected to the same drug tests as the recipients of welfare and food stamps that he wants tested.

A “class-less” stance which certainly seems more fair at first glance – but we are yet to see the public response. One would certainly think that taxpayers would appreciate the regulation of where their tax dollars go but, considering the criticism that a lot of similar legislation in other states has received, we can expect much of the same.

“We will have some legislation ready to go on that. I can’t tell you exactly what it’s going to be right now but it will deal with making sure that when people apply for unemployment compensation that they’re supposed to get it, and second of all, I still want to make sure that we’re drug testing practically everyone getting any kind of government benefits,” Ramsey said.

Workers who are fired from their jobs for cause, rather than being laid off for economic reasons, are ineligible for unemployment pay, but Ramsey told reporters Dec. 15 that he believes that “nine times out of 10,” ineligible individuals are approved for jobless pay anyway. When pressed for evidence, he said he wasn’t sure it was nine out of 10 but added, “I will say a majority of the time.”

However, as is the case with other legislation, there is a question over how constitutional drug testing in this manner really is. Gov. Bill Haslam is not sold on the concept of drug testing recipients on state assistance, for largely this reason. He also questions whether it is cost-effective in the long run.

What are your thoughts of drug testing for those who receive government benefits? Are you seeing similar legislation in your state?

National League’s MVP fails drug test

Ryan Braun, who was voted the National League’s MVP only three weeks ago, has tested positive for performance-enhancing drugs. If the positive result is upheld, Braun faces a 50 game suspension.

Braun, 28, is challenging the results through a three-person appeals panel, saying in a statement that he is a victim of “highly unusual circumstances”  that triggered the violation. Braun’s positive test was first reported Saturday by ESPN.

The positive result came from a test during the playoffs, before Braun’s Brewers were eliminated from their NL championship series by the St. Louis Cardinals. The test apparently showed elevated levels of testosterone and was then sent to the World Anti-Doping Agency lab in Montreal for a more sophisticated test known as a carbon isotope test (CIR), which revealed the levels were caused by exogenous or synthetic testosterone.

For all baseball fans, this is another incident they will want to forget. It was only 8 months ago that we reported in this blog about Manny Ramirez retiring after failing a drugs test for a second time in three seasons.

Braun is going to appeal, but considering that no player has yet successfully appealed a positive test result in 13 tries, it seems unlikely.

West Virginia prepares drug-free workplace legislation

The West Virginia Chamber of Commerce has several initiatives planned for this year’s Legislative session, divided among categories such as education, government, health care, taxation and business development. Its legislative agenda takes a much broader look at the state’s business climate.

As they prepare for the session, one of the key components of discussion will be drugs in the workplace. The Drug-Free Workplace Act would allow all private employers, at their option, to implement drug-free workplace programs which include random drug tests without the requirement that random testing be limited to safety sensitive jobs. The statewide chamber will again join several other groups in asking for an intermediary court of appeals.

The Act states that:

“West Virginians are more likely to die from drug overdoses than people in any other state,according to the U.S. Centers for Disease Control. In fact, drug overdoses and other poisonings killed more West Virginians than motor vehicle accidents in 2007.”

“One in five of the national workforce who die on the job test positive fordrugs or alcohol. As many as 15 percent of all employees in the mining and constructionindustries and one in ten of employees in other industries have admitted to either heavy alcoholor illicit drug use.”

Finally, it goes on to note:

“A Drug-Free Workplace Act will allow West Virginia’semployers to better manage the problems associated employee substance abuse.”

It’s great to see West Virginia placing such a focus on solving the issue of drugs in the workplace, and recognizing the impact that improvements can have.

We will keep our eyes open for similar implementations in some other states as we head in to 2012.

Teens drink bleach in attempt to pass drug test

In what is one of the most concerning news stories this year, for us and for all parents too no doubt, fox10tv revealed that teens in Alabama are drinking bleach in an attempt to pass drug tests. The effects of drinking bleach can, of course, be deadly, so it is shocking to hear that teenagers are considering this a viable option for trying to stay out of trouble.

“As far as kids go, if they fail a drug test, they get kicked off the team. A probationer – over at the probation office – they go back to jail. An employee, if they fail a drug test they may lose their job,” said Mahoney.

While there are many apparent techniques to passing a drug test – a quick search in your browser will bring up a plethora of results – it is some incidents recently that are a real cause for concern.

“We have had cases where they have ingested straight bleach, and it caused significant damage to their body,” said Mahoney. Household bleach strips chemicals and odors from surfaces and fabrics, so you can only imagine what it does when consumed. ”It can eat away at your esophagus and enough of it can cause death,” said Mahoney.

“There is more emphasis on drug testing in school, especially with sporting events and things like that, but there should be education to these Juveniles. You need to say ‘Yes, we are going to drug test and don’t try to mask it because if you do, you’re going to harm your body and this is what can happen,’” said Mahoney.

Mahoney said wreaking havoc on your insides is all bleach will do. Drug tests have gotten sophisticated and can determine the presence of foreign chemicals. ”Specific gravity tests will let us know the urine is not just pure urine coming from the body or if these other compounds are present or if there is a tremendous amount of water in the system where they’ve tried to flush the system”.

Mahoney makes a very good point – it’s about educating individuals on why tests are being performed and the negative effects drug abuse can have. Trying to falsify drug test results is not only a waste of effort, but can also have deadly consequences.

If you see someone drinking bleach, call poison control immediately or take them to the hospital. There is one way to pass a drug test: steer clear of illegal substances.