The need for drug testing has never been more crucial…and employer liability only increases as society becomes more casual in the acceptance of drug abuse.

Legalization

Now we may not be as laid back as our friends up north who are handing out free drugs to everyone, but more and more places in the US are legalizing drugs. The CDC reported in June 2020 that 13% of adults, age 18 and older, started or increased their substance use as a result of the pandemic. This means that 33.6 million adults began using illicit drugs to cope with emotions related to COVID-19. ODMAP, an overdose reporting system, found that 62% of US counties experienced increased drug overdoses due to the pandemic.

To keep your workplace safe, productive, and drug-free, knowing all your drug testing options is essential. Common drug test types include urine, saliva, and hair testing.

What Should I Test For?

It is essential to know which drugs to screen for. Some commonly abused drugs are:

• Narcotics: includes heroin, fentanyl, morphine, opium, methadone
• Depressants: includes benzodiazepines, barbiturates, methaqualone, quaaludes
• Stimulants: includes cocaine, amphetamines, methylphenidate, methamphetamine
• Hallucinogens: common “club drugs” such as ecstasy, LSD, phencyclidine
• Cannabis: includes marijuana, THC, hashish
• Synthetics: includes spice, bath salts, anabolic steroids

Types Of Testing Available

It is also essential to review your company policy to ensure all your drug testing needs are being met. Blueline offers many different testing options. Our most popular tests are:

• 5 Panel: includes amphetamines, cocaine, marijuana, opiates, and phencyclidine
• 7 Panel: consists of all 5-panel drugs, plus barbiturates and benzodiazepines
• 9 Panel: consists of all 7-panel drugs, plus barbiturates propoxyphene
• 10 Panel: includes all 9-panel drugs, plus methadone and methaqualone
• Popular Add-ons: tramadol, meperidine, fentanyl, spice, bath salts

Knowing which drugs to screen for can be tricky. Luckily, Blueline can help you navigate the right testing configuration for your organization and the proper drug testing policy catered specifically to your needs.

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Here’s a short list of important compliance updates highlighting critical information about laws that a few different states have enacted recently. Keep up to date with any compliance changes by using Blueline Services for your background check and drug testing needs.

Background Check Updates

Maine: Bill LD1167 took effect on October 18, 2021. This bill prohibits employers from requesting criminal history records on an initial application or stating on applications that individuals with criminal history cannot apply. Employers may ask about one’s criminal history during an interview or once it is determined that the applicant is qualified for the position.

New York: Bill Int 1314-2018 also took effect on October 18, 2021. This bill extends and clarifies protections for individuals with pending criminal charges. It requires an assessment of the relationship between the charged conduct and the job, which is the same requirement when considering one’s conviction history.

Drug Testing Updates

New Jersey: The employment sections of New Jersey’s personal cannabis use act went into effect on August 21, 2021. This law says that marijuana use should be treated the same as alcohol use. This means that employers cannot discriminate against people based on marijuana use. However, employers can still drug test upon reasonable suspicion of impairment in the workplace.

New York: The Marijuana Regulation and Taxation Act (MRTA) amended New York Labor Law 201-D(4-a) to say that employers cannot discriminate against employees based on legal marijuana use outside of the workplace. Employers cannot test for marijuana use unless it is required by a state or federal law (DOT) or the employee is impaired at work under reasonable suspicion.

Stay up to date on these and other compliance updates with Blueline Services so you are aware of any changes that may affect your business. It’s critical that your business avoid compliance violations, and we at Blueline Services are here to help.

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Several states changed or updated alcohol and marijuana policy. Here’s the rundown of legislative changes:

• Alabama – Made it illegal to use supplements or synthetic urine to fool drug screens.
• Delaware – Added the treatment of anxiety to the list of qualifying conditions.
• Iowa – Updated their THC limits from 3% to 4.5% per gram for patients. Terminally ill patients may have different levels approved.
• Maryland – Increased amount of marijuana needed to qualify as a criminal offense. Anything under a certain amount is a civil offense.
• New York – Added to its mandatory drug testing pre-employment screenings. Any for-hire drivers that transport 10+ must take a pre-employment drug test. CDL and non-CDL drivers are both required to take pre-employment tests.
• Oklahoma – Funded the start of a marijuana breathalyzer program.
• Utah – Changed workers compensation policy to lower the blood and breath alcohol levels required for employers to take action. The reduced amounts will also determine if a person qualifies for workers’ compensation and disability. Private employers do not have to accommodate medical marijuana use under their drug and alcohol policies.
• Virginia – Some marijuana possession and CBD oils now have a civil penalty instead of a criminal penalty.
• West Virginia – If terminating an employee for violating a company drug and alcohol policy, gross conduct can be brought, negating any indemnity benefits.
• Washington, D.C. – Medical marijuana users cannot be excluded from hiring based on a positive marijuana test. No negative actions can be taken against the employee at work unless they use, are impaired, or possess marijuana in the workplace. Private employers are exempt from this rule.

These regulations were enacted by each states’ legislators. To that extent, this list doesn’t include any states that legalized marijuana or other drugs via ballot measures. As always, make sure to check with your legal department to determine if any of these changes may affect you. Blueline is here to help you navigate through this Rundown of Legislative Changes.

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Addiction recovery centers are also going to be set up for free, using tax revenues from marijuana sales as funding.

Drug policies were changed in New Jersey and Arizona to allow the legalization of recreational marijuana. Mississippi voted to allow the use of medical marijuana. There was also a major change in Washington, D.C., where a measure was passed decriminalizing the use of hallucinogenic mushrooms.

There are definite concerns within the drug testing industry about how these changes are going to impact the ability to continue workplace drug testing. Continuing drug testing is imperative, though the idea of just testing for marijuana and/or alcohol is becoming outdated. Continue testing for them, but going forward, a full panel of drugs may be a more effective manner of testing.

While each state is creating its own rules and regulations regarding drug testing and collection processes, one thing is still going to be vital. Companies are still going to be liable for safety-sensitive positions that may cause accidents. Testing within these groups is ultimately going to keep both employees and the public safer.

As Oregon legalizes most drugs, more states are legalizing and lessening restrictions on drugs, the testing industry is going to go through changes. We are here to help our clients navigate these new waters and keep you up to date on any new regulations and changes coming your way.

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The EEOC was established to provide guidelines in order to help employers make fair, informed hiring decisions. They are responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee based on certain characteristics—such as those outlined in Title VII.

Title VII was part of the Civil Rights Act of 1964 and is a federal law that protects employees against discrimination based on certain specified characteristics, such as: race, color, national origin, sex, and religion.

Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.

These laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

Under the federal Equal Employment Opportunity Commission (EEOC), employers are also banned from excluding potential hires based purely on past arrests or criminal records (unless directed otherwise by state or federal regulations) if the offense is not relevant to an applicants ability to perform their job.

Employers should also remember to pay heed to various states “ban the box” regulations which can forbid them from asking about criminal records until after serious hiring consideration.

You can find more information about EEOC and Title VII here.

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For those DOT members who will be a part of the Clearinghouse, below is a timeline of upcoming events happening for the Clearinghouse that you should be aware of.

The Clearinghouse final rule was made back in December of 2016. This rule created a drug and alcohol clearinghouse for the DOT. It also identified the roles and responsibilities of those who will be required to use the Clearinghouse. You can see that final rule here.

Fall 2019: Registration Begins

This upcoming fall users will be able to create an account for the Clearinghouse that will give you access once the Clearinghouse becomes operational on January 6, 2020.

January 6, 2020: Clearinghouse Implementation Date

Mandatory use of the Clearinghouse to report and query information about driver and alcohol program violations will go into effect on this date. Employers will be required to conduct both electronic queries within the Clearinghouse and manual inquires with previous employers to cover the preceding three years.

January 6, 2023: Clearinghouse Three-Year Mark

Employers must query the Clearinghouse to satisfy the employer requirement to identify prospective drivers who have committed drug and alcohol program violations.

If you have any more questions regarding the DOT Clearinghouse and how it applies to you, check out the FMCSA’s information on the Clearinghouse here.

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The Fair Credit Reporting Act (FCRA) is a federal law that was enacted in 1970 to help consumers deal with inaccuracies in their credit reports. In 1996, the law was expanded to include other reports including background reports for employment screening purposes. Today, FCRA compliance is mandatory for any employer using a third party to conduct background checks.

Among it provisions, the FCRA includes the following to protect consumers:

-Consumers have the right to be informed and provide consent when an employment background check is going to be performed
-Consumers have the right to review any information complied on them from these checks and correct any inaccuracies that it may contain
-Consumers have the right to know when their personal data is used in decisions that will affect them
-Consumers have the right to appeal those decisions if they feel that they were made unfairly

As an employer, when you are choosing a background check provider you need to ensure that your provider is a certified FCRA-compliant Credit Reporting Agency (CRA). Aside from choosing a quality, certified CRA, employers also play a critical role within several steps of the background check process.

Your FCRA responsibilities as an employer include:

–FCRA-permitted purpose: The Fair Credit Reporting Act states that employers are only allowed to conduct background checks on employees or potential hires with the purpose of determining fitness for a position. This includes routine background checks to ensure that new charges or findings have not occurred for current employees or employees that are being considered for a promotion or new role within the company.
(Make sure that your purposes for running a background check fall within these guidelines. You should not run a background check on employees for personal reasons or reasons that fall outside of determining fitness for employment.)

-Disclosure & Consent: In order for a background check to be legal, the employer must provide all candidates (including current employees) with a written disclosure of their plans to conduct the background check. This disclosure must be presented on its own—not handed over in an orientation packet or with a collection of other papers. For employers wishing to run a background check on a potential job candidate under review, they must also obtain a signed consent form from the candidate before instructing a CRA to conduct a background check.
(Please ensure that your screening candidate is aware that a background check will be performed on them in order to avoid any liability issues.)

-Share results with the candidate: Upon completion of a background check and before making a final hiring decision, employers must inform candidates of their rights under the FCRA and offer them to opportunity to review (and dispute if necessary) any information within their report. (We always include this information in our authorization forms and offer to send a consumer copy electronically if requested.)

-Consider Equal Employment Opportunity Commission rules to findings review: Under the federal Equal Employment Opportunity Commission (EEOC), employers are banned from excluding potential hires based purely on past arrests or criminal records (unless directed otherwise by state or federal regulations) if the offense is not relevant to an applicants ability to perform their job. Employers should also remember to pay heed to various states “ban the box” regulations which can forbid them from asking about criminal records until after serious hiring consideration.
(Be sure to take each applicant on a case-by-case basis. Consider what the job requirements are, their personal character, if they have completed any rehabilitation programs, or if they have performed well in similar roles before.)

-Follow proper 2-step adverse-action procedures: If a background check does contribute to a decision against hiring, retaining, or promoting a candidate, an employer must issue the candidate written notice. This notice is knows as a pre-adverse action notification and gives the candidate a chance to refute or explain any findings before a hiring decision is final.
(Blueline Services is happy to provide guidance on this process. Our state of the art platform will also help create pre-adverse notifications for you to help streamline your process.)

-Finalize the hire: Once background checks have been conducted, any disputed facts have been corrected as needed, and candidates have been notified of any adverse actions (and given the chance to respond), an employer can then make the final hiring decision and notify all candidates of their final decision.

Here at Blueline Services we always work to stay up-to-date on all of the latest industry changes and updates to keep our clients on top of things. If you have any questions on how to stay FCRA compliant, please feel free to reach out to 888-919-8378 or backgrounds@blueline-services.com.

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Colorado is no stranger to the ‘ban-the-box’ notion as similar bills were brought up in 2016 and 2017, but both times they weren’t passed through. The current version of the bill is posted online here. We’ve outlined some changes that are proposed in this current version of the bill below.

Employers would be prohibited from:

-Inquiring about an applicant’s criminal history on an initial application
-Placing a statement in an employment application that a person with a criminal history may not apply for a position or advertising anything similar

Employers would still be allowed to obtain a job applicant’s criminal history outside of the above stipulations. Certain exemptions are included however for employers regarding the advertising and initial employment restrictions if:

-The law prohibits a person who has a particular criminal history from being employed in a particular job
-The employer is participating in a program to encourage employment of people with criminal histories
-The employer is required by law to conduct a criminal history record check for a particular position

To stay updated on the status of this bill you can go to https://leg.colorado.gov/bills/hb19-1025. As of 2/5/2019 the bill has been introduced and is currently under consideration.

The post ‘Ban The Box’ Bill Makes A Comeback In Colorado After Being Struck Down Twice appeared first on Blueline.

As of February 1st, 2018, Maine became the first jurisdiction in the nation to protect workers from negative employment actions based on off-duty marijuana usage.

While Maine voters approved these protections back in November of 2016 with the legalization of marijuana (“Question 1 – An Act to Legalize Marijuana” or “the Act”), some sections of the Act were delayed to provide additional time to prepare for the changes.

These employment anti-discrimination provisions from the Act are now effective, however, and are changing the way Maine does drug testing.

What exactly do Maine’s new employment protections cover?

The employment protections in the Act prohibit Maine employers from refusing to employ or otherwise penalizing any person age 21 or older based on that person “consuming marijuana outside… employer’s… property.” Job applicants are also no longer allowed to be tested for marijuana.

Exceptions to these new rules include employers who receive federal funding or are hiring for safety sensitive positions where marijuana is still prohibited.

Under the Act, employers are allowed to ban the use and possession of marijuana “in the workplace” and given the right to “discipline employees who are under the influence of marijuana in the workplace”.

However, a drug test alone will not be able to prove that an employee is “under the influence”, the Maine Department of Labor stated.

Unlike alcohol, where impairment can be confirmed with a blood alcohol test, marijuana does not currently have any sort of impairment test equivalent. Testing for marijuana is currently only able to see if someone has used marijuana in the past couple of days or weeks, not if it is presently in their system.

In order to fire an employee based on workplace marijuana usage, employers must be able to prove symptoms of impairment.

However, if someone isn’t performing their job well or is doing something that would be cause for termination, employers are, of course, able to let that person go. What employers are no longer able to do based on Maine’s state laws is fire someone solely on their use of marijuana outside of the workplace.

What should you do as an employer?

All employers, both in Maine and outside of it, would be well-advised to revisit their drug and alcohol policies. Ensuring that these policies are clearly defined to both current and potential employees will help protect yourself, your employees, and get rid of any gray areas.  With the recent legalization of marijuana in many states, it’s more important than ever to make sure both you and your employees understand your state and your individual company’s drug testing policies.

All states with legalized marijuana, aside from Maine, currently have exemptions for workplace drug testing policy. This means that the employment protections above are not applicable to other states, and employers are able to fire employees for failing a drug test based on marijuana usage.

Depending on your industry and workplace environment, you might have a different set of policies than your neighboring company.

More information and updates on recreational marijuana law in Maine can be found on Maine’s legislature page here: https://legislature.maine.gov/9419

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