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DATIA | December 10, 2014
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DATIA | December 10, 2014
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OraSure Technologies
OraSure Technologies is the maker of the Intercept®
Oral Fluid Drug Test, a lab-based oral fluid testing system that was ranked as the #1 recognized brand name in oral fluid testing in a 2014 national drug testing industry survey.
For More Information go to:
www.ChooseIntercept.com
Or Call:
800-ORASURE
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• Bill Current is the president and founding partner of the Current Consulting Group, a consulting firm that features a tenured team of drug testing experts dedicated to helping drug testing providers increase revenue and improve profitability.
• Publisher of the Ultimate Guide to State Drug Testing Laws at StateDrugTestingLaws.com, a comprehensive on-line subscription service available to DATIA members at preferred rates.
• Publisher of the e-newsletter State Drug Testing Laws Monthly.
• Former Executive Director of the American Council for Drug Education, Director of the Institute for a Drug-Free Workplace, and Vice President of Consulting for a national third-party administrator.
• Author of 10 books, including “Why Drug Testing?”
Bill CurrentCurrent Consulting Group, LLC
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A DATIA member subscription to the Ultimate Guide to State Drug Testing Laws at StateDrugTestingLaws.com includes:
1. On-line access to individual state law charts that contain more than 40 line items of information, extensive notes and statutory references & quotes, and that are updated regularly.
2. On-line access to single-issue state law charts for fast and easy access to information about one issue in all 50 states.
3. State legislative updates emailed throughout the year.4. The e-newsletter State Drug Testing Laws Monthly.5. The e-news service Drug Testing In the News.6. Access to our expansive archive of past newsletters and webinar
presentations.7. Your state drug testing law questions answered via email.
StateDrugTestingLaws.com and DATIA
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Legislation Passed in 2014
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States that passed bills in 2014…
• Alabama (3)
• Alaska (1)
• Arizona (1)
• Delaware (1)
• Florida (1)
• Georgia (1)
• Illinois (2)
• Iowa (1)
• Kentucky (1)
• Maine (1)
• Maryland (3)
• Michigan (2)
• Minnesota (2)
• Mississippi (2)
• Missouri (1)
• New Hampshire (2)
• New York (1)
• Oregon (1)
• South Carolina (3)
• Utah (1)
• Vermont (2)
• Washington (1)
• West Virginia (1)
• Wisconsin (1)
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Types of bills passed in 2014…
• Drug testing – general or industry specific (6)
• Marijuana – creating new laws or amending existing laws (12)
• Workers’ compensation (1)
• Controlled substances (5)
• DUI (2)
• Other (1)
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Drug testing bills
Alabama – SB 63
• Requires Department of Human Resources to implement and administer a drug testing program for any adult applying for Temporary Assistance for Needy Families (TANF) cash benefits, upon reasonable suspicion of illegal substance use.
• Must provide notice of drug testing to applicants.
• Cost of initial testing is the responsibility of the Department. Any subsequent test is the responsibility of the individual being screened. If the person tests negative on subsequent tests, the Department shall reimburse the cost of the tests.
• Adults that test positive, are late for their test, or refuse to be tested are considered ineligible for TANF temporary cash assistance.
• Individuals who cannot provide a valid prescription for the drug for which they tested positive will be warned that testing positive to subsequent tests will result in disqualification. This is essentially a second chance system.
• Parent (of a minor child) who tests positive may designate third party to receive benefits for the benefit of the child and family members.
• Allows Department of Human Resources to put forth rules to implement act.
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Drug testing bills
Delaware – SB 169
• Requires Justice of the Peace Court to conduct drug testing of any employee or prospective employee accepting a uniformed service position (this includes positions requiring the carry of a firearm).
• Allows for pre-employment testing, random testing, and reasonable suspicion testing.
• Provides for testing of marijuana/cannabis, cocaine, opiates, phencyclidine, amphetamines, and any other controlled prescription drugs specified by the Justice of the Peace Court.
• The Justice of the Peace Court shall adopt policies for disciplining employees that test positive, which may include referral to state EAP, suspension, or termination. However, no employee will be disciplined for testing positive to a substance that he or she was using according to the directions and terms of a lawfully obtained prescription.
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Drug testing bills
Illinois – SB 2668
• Provides for testing of Department of Corrections employees and that all samples for that purpose shall be collected by persons having at least 15 hours initial training and 8 hours annual follow-up training.
• Replaces the previous requirement of 40 hours initial training.
• Training must include guidelines and procedures on maintaining the integrity of the collection process, ensuring the privacy of employees being testing, ensuring the security of the specimen, and avoiding conduct of statements that could be viewed as offensive or inappropriate.
• Otherwise the law remains as it was previous to the amendment.
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Drug testing bills
Georgia – HB 772
• Requires applicants and recipients of food stamps or TANF benefits to undergo drug testing upon reasonable suspicion of drug use.
• Reasonable suspicion may be based upon demeanor, missed appointments, arrest or other police records, employment or application in an industry that requires drug testing, and termination from previous employment for substance abuse.
• Requires testing to be administered in a manner equivalent to Mandatory Guidelines for Federal Workplace Drug Testing Programs (USDHHS) or other valid procedures approved by Department of Human Services.
• Specifically states that when possible and practicable, an oral fluid swab test will be used in lieu of urinalysis.
• Other issues covered: drug panel, methods for ensuring privacy during collection, storage, transportation, handling, identifying individuals tested, approved laboratories, and exceptions in payment for Medicaid recipients.
• Cost of testing shall be the responsibility of the person tested.
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Drug testing bills
Mississippi – HB 49
• Provides for testing of adult applicants of TANF benefits.
• Includes a questionnaire designed to determine likelihood of applicant having a substance abuse disorder.
• Definition of drug test includes testing person’s bodily fluids. This would allow certain types, such as oral fluid, while prohibited others, such as hair.
• Testing positive or refusing to test are both means for disqualification. If an individual tests negative on a subsequent retest, he or she will regain eligibility.
• If an individual tests positive on a subsequent retest, he or she may remain eligible for benefits if he or she enters into an approved treatment program.
• Requires Department of Human Services to pay for testing.
• Allows applicants testing positive to enter treatment services to remain eligible for benefits.
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Drug testing bills
New Hampshire – HB 597
• Requires licensed health care facilities and providers to establish a drug-free workplace policy.
• The policy must include drug testing, including at least reasonable suspicion testing.
• Additionally, the policy must include employee education, monitoring of inventory if controlled substances are administered at the facility, voluntary self-referral by addicted employees, employee assistance, investigation and resolution of drug misuse and diversion, and consequences for drug misuse and diversion.
• Otherwise, the law does not give specific details on how each element of the policy must be put in place and administered.
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Workers’ compensation bills passed in 2014…
• Arizona (HB 2221) – amends workers’ compensation and adds a series of drug testing requirements:
– Physicians must include a description of measures that will be taken to prevent abuse, dependence, addiction, or diversion by patients being prescribed controlled substances to Industrial Commission of Arizona.
– Physicians must include random drug testing in the medical treatment plan for patients.
– If an individual produces inconsistent drug test results, physicians must provide a written report to insurance carrier, self-insured employee, or Industrial Commission of Arizona within five days setting forth a treatment plan for the individual.
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Controlled substances bills passed in 2014…
• Alabama, Alaska, Minnesota, Mississippi, and New Hampshire all passed bills in 2014 that affect the definition or status of controlled substances in some way.
• Minnesota (HB 2446) – Grants cease and desist authority to Pharmacy Board in order to prevent sale of synthetic drugs.
– If the Pharmacy Board considers that a person has violated a law or rule concerning controlled substances, i.e. synthetic drugs, the Board may issue and cause to be served a cease and desist order.
– The cease and desist order must state reasons for the issuance of the order and explain the rights of the individual to request a hearing before an administrative law judge. A hearing must be held no later than 10 days after the request for a hearing is received by the judge.
– If no hearing is requested within 30 days, the cease and desist order becomes permanent.
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DUI bills passed in 2014…
• Maine (HB 1590) – amends the operating-under-the-influence laws.
• Michigan (HB 5385) – creates preliminary roadside testing for certain controlled substances. Provisions touching upon saliva and marijuana testing were dropped before bill was passed.
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Marijuana
Legislation Passed in 2014
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Marijuana bills passed in 2014…
Alabama, Florida, Illinois, Iowa, Kentucky, Maryland, Michigan, Missouri and New York all passed bills related to marijuana in 2014.
• Alabama (SB 174) – defense against prosecution for medical marijuana.
• Florida (SB 1030) – certain physicians can prescribe low-THC cannabis to certain patients (not to be confused with the defeated ballot measure voted upon in November, 2014).
• Illinois (SB 2636) – amendment to medical marijuana pilot program.
• Iowa (SB 2360) – low-THC cannabis can be prescribed to certain patients (must obtain marijuana out-of-state).
• Kentucky (SB 124) – exempts drugs used in FDA-approved studies or compassionate use programs from definition of “marijuana.”
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Marijuana bills passed in 2014…
• Maryland (HB 881/SB 923) – alters existing medical marijuana program.
• Maryland (SB 364) – reduces possession of 10 ounces or less from a criminal to a civil offense.
• Michigan (HB 660) – allows for sale and regulation of pharmaceutical grade cannabis.
• Minnesota (SF 2470) – legalizes medical marijuana.
• Missouri (HB 2238) – Department of Agriculture can grow industrial hemp and use hemp extract to treat certain individuals with epilepsy.
• New York (AB 6357) – legalizes medical marijuana.
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Alaska: Recreational Marijuana
Voters approved Ballot Measure 2, which amends Alaska statutes by adding a new chapter: “The Regulation of Marijuana.”
Generally mirrors the Colorado law
Possession: State criminal penalties for possession of 1 ounce of marijuana are eliminated. Permits the cultivation of up to six marijuana plants (3 immature, 3 mature) for personal use. Permits the gifting of up to 1 ounce of marijuana to a person 21 or older.
Employment: Sec. 17.38.120. Employers, driving, minors and control of property.
– "(a) Nothing in this chapter is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
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Oregon: Recreational Marijuana
Voters approved Measure 91, which creates a new statute to regulate marijuana.
Effective Date: July 1, 2015
Possession: Any person 21 or older, whether they're a resident of Oregon or not, can possess up to 1 ounce of pot — about 28 joints — on their person, up to 8 ounces in their home, and up to four plants.
The law also allows a person to posses up to 1 pound of solid edibles like cookies, up to 72 ounces of marijuana-infused liquid like soda or lotion, and up to 1 ounce of marijuana extract.
Employment: The law doesn't prohibit businesses from firing employees who test positive for marijuana.
SECTION 4. Limitations. Sections 3 to 70 states that the Act may not be construed:
– "(1) To amend or affect in any way any state or federal law pertaining to employment matters...”
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Washington, DC: Recreational Marijuana
“On November 4, D.C. voters overwhelmingly approved Initiative 71, which willlegalize the limited possession and cultivation of marijuana by adults who are 21 or older. Please note that it does not change federal law — under which marijuana is still strictly prohibited — and it will not go into effect unless it clears a 30-day Congressional review.
“While there is much cause for celebration, passage of I-71 is just the first step. Congressional review will not end until February or March 2015. In addition, the initiative does not create a legal, regulated market for marijuana.”
Source: Marijuana Policy Project
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Washington, DC: Recreational Marijuana
Initiative 71 – Recreational marijuana
"(4) Nothing in this subsection shall be construed to require any district government agency or office, or any employer, to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of any such agency, office or employer to establish and enforce policies restricting the use of marijuana by employees."
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New Hampshire: Medical Marijuana
"Nothing in this chapter shall exempt any person from arrest or prosecution for:
(a) Being under the influence of cannabis while:
(1) Operating a motor vehicle, commercial vehicle, boat, vessel, or any other vehicle propelled or drawn by power other than muscular power; or
(2) In his or her place of employment, without the written permission of the employer; or
(3) Operating heavy machinery or handling a dangerous instrumentality.”
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New Hampshire: Medical Marijuana
It also specifically protects employers with this provision:
"Nothing in this chapter shall be construed to require… Any accommodation of the therapeutic use of cannabis on the property or premises of any place of employment ... This chapter shall in no way limit an employer’s ability to discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis."
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Illinois: Medical Marijuana
Illinois' new law has an extensive employment section, which is largely employer friendly. It is one of the rare medical marijuana state laws that actually mentions drug testing:
"Nothing in this Act shall prohibit an employer from enforcing a policy concerning drug testing, zero-tolerance, or a drug free workplace provided the policy is applied in a nondiscriminatory manner."
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Illinois: Medical Marijuana
It also states that:
"Nothing in this Act shall limit an employer from disciplining a registered qualifying patient from violating a workplace drug policy."
The Illinois law, which becomes effective January 1, 2014, includes specific language that protects an employer when taking disciplinary action based on a drug test result or when a registered patient uses marijuana on the employer's premises or during work hours.
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Minnesota: Medical Marijuana
Minnesota’s law places restrictions on marijuana use related to the workplace:
Undertaking any task under the influence of medical cannabis would constitute negligence or professional malpractice;
Possessing or engaging in the use of medical cannabis in any public place, including any indoor or outdoor area used by or open to the general public, or a place of employment;
Operating, navigating, or being in physical control of any motor vehicle, aircraft, train, or motorboat, or working on transportation property, equipment, or facilities while under the influence of medical cannabis.
The limitations section of the law also prohibits use in a school bus or van, on any school grounds, in any correctional facility, or on the grounds of a childcare or home daycare facility.
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Minnesota: Medical Marijuana
A Minnesota employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or penalize a person, if the discrimination is based upon:
(1) the person being a registered medical marijuana patient; or
(2) “a patient's positive drug test for cannabis components or metabolites, unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.”
Also, an employee is permitted the state’s medical marijuana law to show proof of registration as part of his or her explanation for testing positive.
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New York: Medical Marijuana
New York’s law establishes protections for employees who legally use medical marijuana.
• Employers are prohibited from taking disciplinary action against employees simply because of their lawful use of marijuana.
• Employees lawfully using medical marijuana are considered to have a “disability” under the New York Human Rights Law. Employers who discipline or terminate an lawful medical marijuana users may open themselves up to a disability discrimination claim.
• Employers are required to consider making workplace accommodations for employee who lawfully use medical marijuana.
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New York: Medical Marijuana
• Employers may enforce policies and procedures prohibiting employees from performing their job duties while impaired by a controlled substance.
• Employers are not required to allow employees to utilize or carry medical marijuana if it would violate federal law or put their business in jeopardy of losing a federal contract or federal funding. from work
• Medical marijuana users must obtain a registration identification card and carry it whenever the individual has marijuana in his or her possession.
• The must have a valid prescription from a certified physician in order to lawfully use medical marijuana.
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New York: Medical Marijuana
• Certified individuals are strictly prohibited from smoking medical marijuana.
• Therefore, if an employee smokes marijuana in the workplace or if the employer reasonably concludes based on other evidence that the employee is smoking marijuana recreationally (e.g., smelling of marijuana smoke), the employee will be outside the scope of employment protection.
• Certified individuals are prohibited from consuming marijuana (in any form) in a public place.
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Other legal developments in marijuana in 2014… case law rulings.
Colorado
• Coats v Dish Network – although two lower courts ruled on this case back in 2013, the Colorado supreme court heard the case in September and have yet to release a written opinion. This could create a precedent in this state and the nation that favors users or employers.
Michigan
• Braska v Challenge Manufacturing Company – testing positive for marijuana is not in and of itself means for denial of unemployment compensation. This decision simultaneously applies to two other cases: Department of Licensing & Regulatory Affairs, Unemployment Insurance Agency v Hayes Green Beach Memorial Hospital and Department of Licensing & Regulatory Affairs, Unemployment Insurance Agency v Avasi Services, Inc.
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States Projected to Legalize Marijuana in 2015 Note: Green indicates the state already has a medical marijuana law
California (very likely)
Maine (very likely)
Nevada (very likely)
Massachusetts (somewhat likely)
Arizona (somewhat likely)
Source: Ethan Nadelmann, Executive Director of the Drug Policy Alliance
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2014
Drug Testing Industry
Survey
Sponsored by:
Quest Diagnostics
Alere Toxicology
OraSure Technology
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Oral Fluid Testing
What percentage of all drug tests are oral fluid tests?
Percent
5% or less 25.3%
Between 5% and 10% 29.5%
Between 10% and 15% 9.8%
Between 15% and 20% 8.4%
More than 20% 2.8%
“I don’t know” 23.9%
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Oral Fluid Tests
How do sales in 2014 compare to 2013?
Percent
Sales are up considerably 12.8%
Sales are up modestly 24.2%
Sales are the same 22.8%
Sales are down slightly 1.4%
Sales are down considerably 1.4%
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Hair Testing
What percentage of all drug tests are hair tests?
Percent
5% or less 35.2%
Between 5% and 10% 30.9%
Between 10% and 15% 7.0%
Between 15% and 20% 7.0%
More than 20% 2.8%
“I don’t know” 15.4%
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Hair Tests
How do sales in 2014 compare to 2013?
Percent
Sales are up considerably 5.6%
Sales are up modestly 35.2%
Sales are the same 23.9%
Sales are down slightly 7.0%
Sales are down considerably 1.4%
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Point-of-Collection Tests
What percentage of all drug tests are point-of-collection tests?
Percent
5% or less 4.2%
Between 5% and 10% 12.6%
Between 10% and 15% 9.8%
Between 15% and 20% 21.1%
More than 20% 33.8%
“I don’t know” 18.3%
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Point-of-Collection Tests
How do sales in 2014 compare to 2013?
Percent
Sales are up considerably 11.2%
Sales are up modestly 30.9%
Sales are the same 25.3%
Sales are down slightly 2.8%
Sales are down considerably 0.0%
We do not sell POCT devices 29.5%
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Predictions
• Alternative testing methods, oral fluid and hair, will become
more popular.
• I believe that oral fluid testing will become more prevalent when the federal regulations start allowing it for DOT-covered employees. If DTAB approves hair testing and DOT regulations are put in place for DOT-covered employees, I expect a large percentage of employers switching to hair testing, mainly because of the longer window of detection.
• 2015 will be the “Year of The Mergers.” If you are a drug screening company doing $3-5M, you will be purchased.
• Smaller providers will see significant growth regionally.
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Predictions
• A continued demand for a one-stop employment screening solution as driven by technology. Providers of the future will need to offer all aspects of employment screening to their customer base. Background, on-boarding, occupational, drug, wellness, etc. will all need to be centralized. The "Amazon" approach will become the norm in our industry.
• There will be a push to use multiple testing devices simultaneously; urine, oral, hair… an MRO or "other designate" will be asked to determine impairment or probable risk.
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Predictions
• The main area of growth will be overseas where more advanced testing methods are already commonplace.
• Developing technologies will change the face of workplace drug testing - perhaps labs will become a thing of the past and POC devices will develop to become the one stop solution.
• Increasing emphasis on fitness for duty/impairment component of workplace testing.
• Legalization will result in increased drug use and the problems related
to illicit drug use.
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Legalized Marijuana
What impact will legalized marijuana have on the drug testing industry?
Percent
Legal marijuana will have little or no negative impact on drug testing sales
26.7%
There has been no impact on drug testing sales yet, but I believe there will be soon
21.1%
Employers are confused and worried about how to deal with marijuana in the workplace
67.6%
Some employers have already eliminated marijuana from their drug test panel
16.9%
Legal marijuana could potentially harm the drug testing industry significantly
19.7%
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Learn More!
Visit CurrentConsultingGroup.com
Bill Current
