One of the biggest dilemmas facing employers today is how to maintain a safe workplace while laws and popular attitudes toward psychoactive drugs like marijuana appear to be lining up against them. This is particularly true for employers in industries with a safety-sensitive jobs such as construction, warehousing, transportation and manufacturing.
When Quest Diagnostics recently released its annual nationwide Drug Test Index in March, it quoted Jenny Burke, vice president of impairment practice at the National Safety Council (NSC), who said the complex problem of drugs in the workplace is not going away anytime soon. “Employers should have the right and ability to maintain a substance-free workplace and the use of drug testing, including oral fluid in addition to urine,” she argued, noting that NSC supports the ability of employers to ensure safe and healthy workplaces.
One of the most recent developments was the U.S. House of Representatives voting 216 to 202 to lift federal restrictions on marijuana on April 1. Although that legislation is not expected to be approved by the Senate, its passage by the House offers a vivid glimpse of this country’s changing attitudes toward that particular drug.
Along with legalizing medical and recreational marijuana, some states also have passed additional laws to prohibit employers from discriminating against workers who use cannabis off the job—except for those who are restricted by law. Also, debate continues to rage over what is the most appropriate and effective testing method for employers to use.
The rate of positive drug test results among America’s workforce in 2021 reached its highest level since 2001 and was up more than 30% in the combined workforce from an all-time low in 2010-2012, Quest Diagnostics’ index found. Although year-over-year comparisons showed only small increases in 2021 over 2020, Quest said it rose substantially over the previous five years in most drug categories.
The company’s definition of the combined workforce includes the general workforce of mostly company-policy testing by private employers along with the federally mandated, safety-sensitive workforce, which includes federal employees and those who work in the transportation and nuclear power industries, which includes pilots, truck drivers, train conductors and others required to drug test under federal regulations.
Overall positivity in the federally mandated, safety-sensitive workforce based on nearly 2.7 million urine drug tests stayed even year over year (2.2% in 2020 and 2021) but was 4.8% higher than 2017 (2.1% in 2017 vs. 2.2% in 2021).
That’s the good news. The bad news is that for the general U.S. workforce, positivity increased 1.8% (5.5% in 2020 vs. 5.6% in 2021) and was 12% higher than in 2017 (5.0% in 2017 vs. 5.6% in 2021), and was up for each of the last five years. Last year saw small but continuing increases in positivity for methamphetamine, cocaine and opiates, such as hydrocodone.
Barry Sample, Quest Diagnostics’ senior science consultant, noted that among notable trends were increased drug positivity rates in the safety-sensitive workforce, including those performing public safety and national security jobs, as well as higher rates of positivity in individuals tested after on-the-job accidents.
“People who use drugs during working hours or before work can still be impaired and dangerous to co-workers, the general public and themselves,” he added. One issue was created by some state legislatures, which have adopted laws prohibiting discrimination against marijuana users by employers, including banning of testing in some circumstances.
Of course, those laws exclude employees in safety-sensitive positions. “It is important for workers to know that certain employers are required to test for marijuana under federal law," Sample said. "If they use marijuana, they can still lose their jobs."
Cannabis Takes Lead Role
Although other drugs continue to show up prominently in the survey, marijuana remains one of the most troublesome as far as employers are concerned because traditional testing techniques and observation often are inadequate to reveal whether someone is under the drug’s influence.
Legal marijuana is available in a dizzying array of different types and in different concentrations of its psychoactive ingredient, THC. Individuals also react differently to the drug and, in some circumstances, they may not seem impaired at all. Recent scientific research testing the effects of driving under the influence of cannabis bears this out.
Drivers under the influence of cannabis are often unaware of the negative impact it has on their judgment and reflexes at different times following its ingestion, researchers at the University of California-San Diego found. The researchers constructed an elaborate experiment designed to measure the drug’s impact on drivers.
Drivers’ reaction times and judgment were tested on driving simulators after they were given two different strengths of THC concentrations (a third control group was given a non-psychoactive placebo). The drivers were tested at intervals of 30, 60 and 90 minutes after ingesting the drug.
After 30 and 60 minutes following ingestion, their driving ability was measurably impaired. Cannabis users displayed significantly diminished ability when their abilities were assessed regarding key simulated driving variables, such as swerving in lane, responding to divided attention tasks and attempting to follow a lead car.
In general, the comparative decline in performance was found to be sharpest at the 30- and 90-minute marks after the test subjects had ingested the cannabis. That decline later leveled off to only borderline differences with the non-placebo group at three and a half hours, and eventually showing no difference with the placebo group at four and a half hours.
But after 90 minutes something unusual happened that surprised the researchers: Most of the drivers believed that they were no longer impaired—and half of those drivers turned out to be right, and no measurable or observable degradation of their driving abilities were observed.
This could complicate matters for law enforcement if the experiment’s results are replicated by other researchers. Lead researcher Thomas Marcotte explained that, “although users in the THC group felt impaired and were hesitant to drive at 30 minutes, by 90 minutes they believed the impairment was wearing off and were more willing to drive.”
In spite of performance improvement at three-and-a-half hours, recovery was not fully seen until four-and-a-half hours after the drivers first got high. “This was despite their performance not significantly improving from the 30-minute point,” Marcotte said. “This may indicate a false sense of safety, and these first few hours may constitute a period of greatest risk since users are self-evaluating whether it is safe to drive.”
The lack of a firmly ascertained relationship between blood THC concentration and driving performance at certain times may be used to raise questions about the validity of laws that simply ban the ingestion of cannabis before getting behind the wheel, Marcotte concludes.
“When users control their own intake, one cannot infer the level of impairment based on the THC content of the product, the level of behavioral tolerance in the individualor the blood THC concentration,” he observed. He also urged that future research address factors such as individual biologic differences, personal experience with cannabis, and cannabis administration methods in relation to driving impairment.
The Testing Conundrum
Employers already facing the problem of how and when they can test their employees for illicit drug use, particularly in regard to marijuana. THC can remain in the body for weeks after it has been ingested. Some state laws also protected employees from being tested routinely and even post-accident testing has been limited to situations where the employee exhibits symptoms because such tests are believed to be unfair and retaliatory.
Public attitudes have changed, making anti-drug use policies much less popular. Last year, the Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Clearinghouse reported 56,000 drug abuse violations among professional truck and bus drivers. Of these, 45,822 of the violations were the result of drug test failures and 29,500 involved marijuana.
The big surprise was how few of the drivers taken out of service chose to go through the mandatory rehab required to return to driving. This is the last thing that trucking employers had wanted to hear while confronting a serious truck driver shortage.
On Feb. 25, the Department of Transportation (DOT) issued a proposal to add oral fluid testing to its arsenal of weapons against illicit drug use in the safety-sensitive positions it regulates, including pilots and train operators as well as truck and bus drivers. Specifically, employers could use oral testing as an alternative to urine testing, which has its own set of disadvantages, including availability of methods used to help those being tested to cheat.
“This will give employers a choice that will help combat employee cheating on urine drug tests,” DOT said in its published proposal. “Unlike directly observed urine collections, an oral fluid collection is much less intrusive on the tested employee’s privacy.”
Although useful for ascertaining the level of THC and presence of other drugs in a driver’s system, oral testing does not address testing for excessive alcohol use. “In proposing oral fluid testing, the department is offering an alternative specimen for drug testing; however, we are not proposing to eliminate urine drug testing,” DOT explained.
The department is seeking public input on this and other questions surrounding the use of oral testing. “Specifically, we are seeking comments as to whether there are circumstances where either urine or oral fluid should be mandatory,” DOT said.
You can’t blame some trucking employers for being only cautiously optimistic about this new testing proposal. For many years, trucking employers backed the hair testing method, but a proposed rule has been blocked within the bureaucracy for two-and-a-half years.
“We are elated that DOT is proposing the inclusion of oral fluids as an approved testing method for DOT purposes,” said Dan Horvath, American Trucking Associations’ (ATA) vice president of safety policy. “ATA has long advocated for its inclusion, and [this] is another step closer in getting it done.”
David Heller, vice president of government affairs for the Truckload Carriers Association (TCA), observed in EHS Today's sister publication Fleet Owner, “Fighting half the battle with one alternative measure is great, but allowing hair testing would truly provide carriers with the ultimate flexibility of identifying potential drug users at the time of test and allow for other fleets to reap the benefits of those results by allowing them to be uploaded into the clearinghouse.”
Expanding the list of available drug testing methods also may help DOT address an accusation that it is underreporting the use of drugs by drivers, a charge that was leveled in January by the Alliance for Driver Safety & Security (aka the Trucking Alliance), a trucking and logistics company group unrelated to ATA and TCA.
The alliance cited a study conducted by University of Central Arkansas (UCA). “Our research found that DOT is seriously underreporting the actual use of harder drugs by truck drivers, such as cocaine and illegal opioids,” said Doug Voss, UCA professor of logistics and supply chain management. “Our analysis clearly concludes that hair testing identifies these harder drugs at higher percentages than the single urine testing method relied on by the federal government.”
The study compared 1,429,842 truck driver pre-employment urine drug test results reported by the FMCSA Drug and Alcohol Clearinghouse with 593,832 urine and hair test results submitted by trucking employers who are members of the Trucking Alliance.
The alliance—which advocates for replacing urine testing with hair tests—noted that in 2020, FMCSA disqualified 54,955 commercial truck drivers for failing a urine test for illegal drug use, with marijuana cited as the primary drug of choice. However, the UCA study found that the agency would likely have disqualified twice that many truck drivers—another 58,910—had they submitted to a hair drug test.
Unlike marijuana, cocaine was the primary drug among this driver population, the researchers reported. “Federal law prohibits truck drivers from using illegal drugs, yet thousands are escaping detection,” said Lane Kidd, managing director of the Trucking Alliance. “Driving a tractor trailer while under the influence is a lethal combination and we must keep these drivers out of trucks until they complete rehabilitation and return to duty.”
Not everyone is persuaded. Todd Spencer, president of the Owner-Operator Independent Drivers Association, responded, “What the Trucking Alliance is claiming cannot possibly be extrapolated to the entire industry. They really should be taking a closer look at why their carriers are so attractive to potential employees that use illegal drugs. And, any shipper that uses those companies might also take note.”
David Sparkman is founding editor of ACWI Advance and contributing editor to EHS Today.