At the end of October, President Trump signed into law a package focused on curbing the misuse of opioids. Included in the legislation, was a provision requiring that the Department of Health and Human Services update Congress on the status of hair testing by December 24. The update is required to include a schedule, with benchmarks, for the completed guidance.
The History of the DOT and Hair Testing
The FAST Act Highway Bill in 2015 called for DOT to recognize hair sample drug tests as an alternative to urine tests. HHS was required to produce guidelines for how the tests should be conducted. Almost two years after the deadline, motor carriers are still waiting.
What’s the current status?
The chairman of the Substance Abuse and Mental Health Services Administration’s Drug Testing Advisory Board, Ron Flegel, recently advised at a December 4thmeeting, that the hair proposal has been reviewed by HHS operational division and the next step would be a review from more than a hundred federal agencies. The proposal will also need to be reviewed by the Department of Transportation and the Nuclear Regulatory Commission. Flegel also reported that HHS is nearing completion of the final approval for mandatory oral fluid guidelines for drug testing.
What should employers do?
While we have seen an uptick of carriers using hair testing in addition to urine testing in recent years, federal law still only allows urine tests. Employers should continue as they are until the final chapter is written. We will continue to provide updates as this winds its way through the approval process.
One week after Ohio’s Medical Marijuana Control Program patient registry opened, over 2000 patients have been registered and retail dispensaries are expected to open in sixty days.
Employers who have not yet addressed a medical marijuana policy can no longer afford to delay.
Does my company need a written policy?
House Bill 523 makes it clear that Ohio employers, who plan to enforce a medical marijuana protocol, must have a written policy and it must be communicated to employees prior to enforcement. It’s important to note that the written policy is required for all situations with medical marijuana, including when the workplace is planning an accommodation for use.
Having a written policy goes far beyond the medical marijuana law in Ohio, however. With the current state of opioid misuse, the significant rise of cocaine and methamphetamine overdoses and a benzodiazepine misuse epidemic on the horizon, it is more important today than ever before for an employer to protect their business. And that means allbusinesses - even those who don’t currently require their employees to drug test. Without a policy in place, the employer will have difficulty enforcing a situation if an employee reports to work impaired.
Know the Law for Your Workplace
House Bill 523 does not interfere with the right of the employer to have a drug free program (including the Drug Free Safety program) and zero tolerance discipline policies can continue. Employers are allowed to ban all use and terminate employees who violate the policy or can also choose to accommodate some use, as well. They are under no obligation to hire an applicant who uses medical marijuana.
If the organization is required to comply with a federal authority, like the DOT, or is a federal grant recipient, marijuana remains illegal. Individual contracts may also prohibit the use of medical marijuana. Multi state employers should know the laws in each state. What is required in Ohio may not be allowed in other states and more than one policy may be necessary.
What’s an employer to do?
There’s no “one size fits all” answer to the medical marijuana policy question. While banning the medical use of marijuana may seem to be the simple choice, every company is different and there are some important factors that need to be considered. For example, a company with only administrative type jobs may choose to allow use since the safety risk is low. In a factory with a high incidence of injuries, banning use on all levels is probably more appropriate. In some areas, hiring has been difficult due to the booming economy and low unemployment rate, making retention of current employees very important. And, one of the hardest situations of all: the company with a Last Chance Agreement disciplinary policy. Does it make sense to allow an employee who tests positive for cocaine to keep their job while immediately terminating the employment of a different employee who is in legal compliance with the Ohio Medical Marijuana Control Program? These are just some examples that employers must consider before settling on a policy in their company.
Many employers have already reported situations involving the use of medical marijuana. Contact your drug free consultants and legal counsel to ensure your organization is making the best decision for your company.
Current training clients of First Connect: We help you work through the medical marijuana policy issues at no charge. Get in touch with our offices today!
New to First Connect? We have low fee support services that can help with your policy. Call us today for more information.