HD72 - Drug Testing in the Workplace

  • Published: 1994
  • Author: Department of Labor and Industry
  • Enabling Authority: House Joint Resolution 534 (Regular Session, 1993)

Executive Summary:
In carrying out the study requested by the General Assembly in House Joint Resolution 534, the Department of Labor and Industry reviewed the relevant literature, collaborated with an Advisory Committee, collected information from other states, conducted a Virginia survey of employers, and sought public participation through public meetings, written comments and an ad hoc Focus Group. Throughout this study, the Department sought to obtain the most accurate data available for a comprehensive report on the practice of drug testing in the workplace.

PREVALENCE OF DRUG USE IN THE WORKPLACE

Trends in the use of illicit drugs by the general population 18 years of age or older typically show peaks in the late 1970s and early to mid 1980s. After this, the rates of use fall off significantly. Three major types of illicit drug use which may affect employers are marijuana, psychotherapeutics, and cocaine.

The National Institute on Drug Abuse (NIDA) annual household surveys on drug abuse provide the best estimates for information on drug use by employed individuals. Age appears to be the major predictor of drug use by employed people. Those employed individuals from the ages of 18 through 34 have higher levels of drug use than employed people 35 years or older.

Alcohol has significantly higher percentages of users than any of the illicit drugs. The trend in alcohol use had been declining from the late 1970s to the mid 1980s, however, from 1988 through 1991, levels of use appear to be remaining constant.

TESTING METHODS AND ACCURACY

Analysis of different fluids and tissues can provide a wide range of information on the extent of drug use depending on the sample availability, analytical sensitivity and specificity, and the nature of the drug itself. Blood concentrations of many drugs potentially provide insight into the degree of therapeutic effectiveness or intoxication of the individual. Blood has its limitations for drug testing purposes and requires more sensitive, time consuming and expensive techniques. Drug detection in hair is said to be from months to years depending on length and type of hair. It can be collected under close supervision, is easy to handle, store and mail. Toxicologists are not in support of this procedure and cite some studies which indicate environmental exposure can contaminate the hair. Saliva collection is non-invasive but many drugs are retained for shorter periods of time than other samples (urine). The sample volume may be less than optimal for drug testing. For decades urine has been the sample of choice for most drug detection programs. Sample collection is non-invasive, the volume is more than sufficient or longer. Reduced costs associated with urine testing can be attributable to high drug concentrations together with large sample volumes. Testing urine for drugs or metabolites does not relate to their effect on an individual. High urinary drug concentrations do not mean that there is a high degree of impairment. Certain foods or legitimate medications can cause a misinterpretation of "positive" results. Use of a Medical Review Officer (MPO) in the urine-screening program helps minimize misinterpretations.

Five analytical procedures are most commonly used for urine testing. Three lmmunoassay methods are easily automated, relatively inexpensive and quick. Each drug or drug class must be tested separately and each positive must be independently confirmed because of the potential for cross-reactivity. Thin-Layer Chromatograph (TLC) and Gas Chromatography/Mass Spectrometry (GCIMS) are the two chromatographic methods available for drug testing. TLC requires multiple steps in processing as well as skills necessary for interpreting the results. Costs tend to be higher and the sensitivity and specificity of drug detection tends to be poorer. GC/MS is considered the most sensitive and accurate of the urinalysis technologies and is the standard against which results from the four others are compared. GCIMS is recognized by the drug testing industry as the preferred confirmatory technology for detecting drugs in urine and is the preferable method recommended by the NIDA guidelines. Confirmation by GC/MS provides the best protection against future legal challenges. Equipment and personnel costs are high, consequently, GCIMS is usually used only for follow-up, confirmatory testing where preliminary results were putatively positive.

Alcohol is the most widely used and abused drug in our society. Alcohol may persist in urine beyond the time that effects are fell Blood, either directly or indirectly via breath,, is the preferred sample for measuring impairment. Defining the blood alcohol concentration (BAC) where impairment is presumed may vary with the intent of the program and the task at issue. Some states define impairment for under age drivers at a BAC of 0.02%; whereas, certain occupations failing under federal regulations must abide by a limit of 0.04%.

REHABILITATION

Individual employers have the option of providing an employee assistance program (EAP) or some other type of rehabilitation. The National Institute on Drug Abuse (NIDA) recommends that an EAP be part of the back-to-work procedures in conjunction with the use of a Medical Review Officer, following a positive test result. EAPs can also provide needed education and training on types and effects of drugs, symptoms of drug use and its impact on performance. Cost of rehabilitation depends on whether the employer has an in-house EAP or "contracts out" for services. Employees may be required to pay for rehabilitation services if the employer does not offer a health benefits package.

FEDERAL REQUIREMENTS

Federal agencies and the courts have taken the lead in employee drug testing. Since 1985, numerous federal agencies have promulgated drug testing regulations. The Federal Railroad Administration was the first to mandate blood and urine testing of its employees involved in train accidents. An Executive Order, "Drug-Free Federal Workplace," prohibits use of illegal drugs by federal employees, requires executive agencies to implement mandatory drug testing for employees in sensitive positions, and permits individualized testing on reasonable suspicion, following accidents or investigations, or as part of a drug rehabilitation program. The Federal Highway Administration requires interstate motor carriers to conduct pre-employment testing, reasonable cause testing, biennial testing, and annual mandatory random testing of 50 percent of drivers. Department of Defense rules apply to contracts involving access to classified information and other contracts concerning issues of national security, health, or safety. The Drug-Free Workplace Act requires all federal contractors and grantees to certify that they will provide a drug-free workplace. Under the U. S. Department of Transportation regulations, six agencies (Coast Guard, Federal Aviation Administration, Federal Highway Safety Administration, Federal Railroad Administration, Research and Special Projects Administration) are required to test employees whose jobs have an impact on public safety or security. Subsequent Congressional action included all state transportation departments. The Nuclear Regulatory Commission issued regulations to operators of nuclear power reactors and the Civil Space Employee Testing Act requires alcohol and drug testing of NASA employees and contractors whose duties include responsibility for safety-sensitive, security, or national security functions.

STATE BY STATE ANALYSIS

Among the 50 states, nine states have a Drug-Free Workplace Act/Policy primarily applicable to state government employees and/or state contractors. Governors in 12 states have issued Executive Orders in support of achieving drug-free workplaces which are similar to the Federal Executive Order. Seventeen states have laws specifically for private sector employers, many which only apply if the employer elects to initiate a drug testing program. And, 19 states have enacted legislation regulating drug abuse in public sector workplaces. Three states, including the Commonwealth of Virginia, have promulgated administrative rules or regulations that apply only to state employees. Nine states have not adopted any statewide policy, regulation or statute regarding drug-free workplaces or drug testing in the workplace.

LEGAL ISSUES AND COURT CASES

Constitutional restrictions and many statutory limitations do not apply to the private workforce. There is relatively little in the way of' reported case authority dealing with claims made by private employees for workplace testing. Private employees must allege specific claims under previously existing enactments, common law causes of action, or employment agreements and may include defamation, invasion of privacy, and breach of contract. For public employees, two U. S. Supreme Court cases, Skinner v. Railway Executives Association, 489 U.S. 602 and National Treasury Employees Union v. Von Raab, 489 U.S. 656, demonstrate that the Court will uphold some testing, at least in certain circumstances. In both federal and state courts, random drug testing of police officers, transportation workers, and correction officers generally have been affirmed. Recent court cases point to the difficult issues being raised today in drug testing litigation.

SURVEY OF VIRGINIA EMPLOYERS

The 1993 Virginia Employer's Survey reveals that most of the drug testing programs in the Commonwealth is conducted by small firms. Small size (1-99 employees) establishments in Virginia comprise 96.9% of all businesses. Fewer than ten percent of the state's businesses conduct drug testing. Twenty percent of construction industry businesses and twenty percent of wholesale businesses have drug testing programs; the Service Sector is third at 18%. Almost one-half of the firms conducting drug testing are doing so because of federal mandates, with Retail Trade and Transportation Sectors leading this list. Random drug testing is conducted by most of the firms under federal mandates; while less than a fourth of the non-mandated firms conduct random testing. Over three-quarters of the mandated and non-mandated firms conduct pre-employment testing. Most Virginia fin-ns that have programs are testing for controlled substances; but fewer than half are testing for alcohol. Just over half of the firms indicate that they dismiss an employee who tests positive; however, most companies will assist an employee who voluntarily admits to having a substance abuse problem. Use of National Institute on Drug Abuse (NIDA) certified laboratories was reported by 95% of the respondent firms. Only about a third of all respondents (both testing and non-testing firms) believe that drug abuse, including alcohol, is a serious or very serious problem; and approximately another third felt that it was not a problem or not a very serious problem.

This survey was necessitated because the only available information was national data which did not include Virginia. The survey sample was selected to represent the state's business community, excluding federal employers. The survey achieved a 41 % response rate.

EMPLOYERS AND EMPLOYEES

On behalf of employers, the Virginia Chamber of Commerce has provided an employer's perspective on drug testing in the workplace. The Virginia AFL-CIO and Virginia Governmental Employees Association have furnished their concerns on behalf of employees.

RECOMMENDATIONS
This report recommends that the state acknowledge the federal requirements as its policy and that the state's role be limited to education and information. In this capacity, it is recommended that the state provide for a central point of contract within existing resources for employers and/or employees Interested In achieving a drug free workplace.

Among its possible duties are:

Establish a public-private partnership to develop a public awareness campaign aimed at decreasing the abuses of alcohol in the workplace.

Conduct a study to define the blood alcohol concentrations (BAC) where impairment is presumed for various tasks associated with the work environment. The study should also include effective testing methods and related costs.

Maintain up-to-date information on the various federal government drug testing mandates as well as congressional action affecting the state, its business community and employees.

Develop statewide educational conferences to assist businesses, especially small businesses, who are interested in establishing drug free workplaces. When necessary, conduct follow-up sessions on specific issues, such as EAPS, etc.

Follow-up on Virginia survey of employers with a survey of Virginia's employees.