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Legalization of cannabis use has swiftly increased over the past decade. Due to the fact 2012, 16 states have legalized the use of recreational marijuana, and all but two states (Idaho and Nebraska) have legalized cannabis or its derivatives (e.g., CBD or THC) in some sort. It is no surprise maybe that around that exact period, work drug-test positivity prices have rapidly greater as well.
In information not long ago launched by Quest Diagnostics, the drug-check positivity fee for THC has improved each individual year because 2016, with costs surging in states that have legalized leisure use of marijuana. About that identical time period, positivity rates for amphetamines have also steadily improved.
Any drug that is smoked (principally cannabis but also cocaine, methamphetamine, and many others.) triggers queries of regardless of whether secondhand smoke can result in a drug-testing beneficial. Hair drug screening must deal with the query of environmental contamination due to the fact hair (not like urine) is exposed to the environment. Confronted with climbing drug-check positivity costs, employers can count on much more secondhand smoke and environmental contamination claims from employees who exam good for drugs.
How can companies kind through promises of secondhand smoke and environmental contamination elevated by persons who dispute their beneficial examination result?
To aid discern amongst good exam final results brought about by intentional drug use as opposed to those that occur from secondhand smoke and environmental exposure, companies can depend on several handy applications these as Health care Review Officers (MRO) and sophisticated techniques utilised by reliable drug testing labs.
Healthcare Review Officers
An MRO is usually a licensed and board-accredited health practitioner liable for obtaining and reviewing non-detrimental examination effects produced by an employer’s drug tests program. MROs act as valuable intermediaries—contacting drug check-takers and offering them an chance to demonstrate the non-destructive drug check consequence. Under 49 C.F.R. § 40.137(a)-(b), MROs ought to ” supply the staff an chance to present a genuine health care rationalization in all instances.”
For example, if an individual believes that his/her prescription medicine was liable for their drug test results, it is the MRO who will handle these kinds of promises. MROs can also aid debunk claims that a non-adverse outcome could have been from secondhand smoke or alleged environmental elements.
Section 4.2(1) of the Clinical Evaluation Officer Direction Handbook for Federal Workplace Drug Screening Plans reads that: “If the donor does not acknowledge to illicit use of a drug dependable with the exam results…ask the donor if there is any possible rationalization for the test final result[.]” In most cases, it is unattainable for secondhand smoke or environmental components to have brought about a positive drug check specified the cutoffs made use of by highly regarded drug tests laboratories.
Relying on an MRO’s unbiased judgment and know-how can supply companies with an invaluable useful resource to determine whether or not beneficial check benefits crop up from environmental factors.
Separately, MROs can safeguard employers from inadvertently discovering about private well being situations of future or current personnel, which might induce affirmative lawful duties, these as engaging in interactive approach as required by the Americans with Disabilities Act (ADA).
Respected Lab Tactics
Other than utilizing an MRO, businesses need to make use of dependable drug-tests labs to cut down any realistic assert that secondhand smoke or environmental components induced a “false positive.”
Initial, reputable labs will use field-normal cutoffs to make certain that any drug tests beneficial is from intentional ingestion fairly than secondhand smoke or environmental contamination. For occasion, trustworthy urine testing labs typically use a cutoff focus of 50 nanograms for each milliliter (ng/mL) for marijuana.
If an individual has been exposed to secondhand cannabis smoke right before taking a drug check, the check will probable yield a marijuana concentration that falls appreciably down below that cutoff stage, and hence claimed as “negative.” Trustworthy hair drug screening labs also use washing approaches to handle any environmental drug contamination.
Lawful Reaction to Optimistic Test Final results
Essential to be aware below that clinical or recreational cannabis use is intentional. As these kinds of, clinical or recreational cannabis use will probable bring about a favourable drug exam considering the fact that such intentional use will pretty much certainly generate success more than the laboratory cutoff. The lawful reaction to that constructive take a look at will count on controlling condition regulation.
For case in point, some states mandate certain lodging for health care and even leisure cannabis use though some others do not. An employer’s obligations could depend on irrespective of whether the marijuana use was on or off the occupation, no matter whether the personnel possessed marijuana at get the job done, was intoxicated by marijuana at get the job done, no matter whether the work at problem is basic safety-sensitive, and many others.
As obtain to leisure drugs increases, so way too will favourable drug take a look at success and claims that good results come up not from intentional, but from environmental publicity. Though businesses can’t reduce those types of promises, they can rely on respected lab screening course of action and MROs to lower the probability that a potential or latest worker can falsely declare environmental elements caused a beneficial test consequence.
This column does not automatically mirror the feeling of The Bureau of National Affairs, Inc. or its proprietors.
Michael Clarkson, shareholder in Ogletree Deakins’ Boston place of work and co-chair of the firm’s Drug Testing Observe Group, is a top voice on significant drug screening challenges. He drafts compliant drug tests procedures, advises on drug testing troubles, and defends employers towards “false positive” drug tests statements.
Ryan Mangum, associate in Ogletree Deakins’ Phoenix business, focuses mainly on employment law and litigation and signifies companies in a wide range of issues including harassment, discrimination, and contractual disputes.