Federal Drug Testing Laws

Drug testing has become common in workplaces, schools, colleges, and professional organizations in America. The Federal Drug Testing Laws outline how employers should carry out a drug test, collect the specimen for testing, and what should be tested for. 

Moreover, due to the recent COVID 19 pandemic, there has been a definite rise in the number of employees who are being hired and subsequently subjected to drug testing. Although the Federal Drug Testing Laws did not undergo an enormous change or amendments in many years, some states have changed their marijuana laws, and it becomes essential for both the employees and employers to know the Federal drug testing laws.

Let's look at the current federal drug testing laws 2022 and its implications for employers and employees.

Table Of Contents:

• Background Of Federal Drug Testing Laws
• Significant Changes Proposed With Time
• Certification Of Laboratories And Different Requirements For Testing
• What Happens If A Federal Agency Fails To Comply With The Guidelines?
• Do Private Employers Have To Use Federal Drug Testing Guidelines Too?
• Future Of Expanding MMJ Legalization

Background Of Federal Drug Testing Laws

Drug testing can be necessary for several reasons. It may prevent unlawful use of a controlled substance or determine if an individual is safe for their job. Drug testing at the workplace has led to more productive employees, better employee retention rates, lower health care costs, and decreased workers' compensation costs.

Before the 1970s, very few restrictions were placed on employers' drug testing practices. Employers conducted drug testing to maintain work performance and prevent confusion and accidents in the workplace. 

However, this changed with time as guidelines for drug testing of federal employees were initially published by the U.S. Department of Health and Human Services (HHS) in 1988. However, these guidelines have been revised numerous times since 1994, 1997, 1998, 2004, 2008, and 2017.

The Federal Drug Testing Laws defined various federal employees who could receive drug testing at any time. It included military personnel, workers in certain positions that require security clearances, and those who wished to become medical technicians. 

These positions were referred to as Testing Designated Positions (TDPs). However, before the 1990s, specific policies for federal employees and legal regulations for drug testing were nonexistent. 

From the late 1980s onwards, research studies showed that employees who tested positive for drugs were fired from their jobs. Furthermore, as per Federal Drug testing laws, whether a position is considered a TDP or not, agencies could make passing a drug test a condition of employment.

Situations In Which Federal Employees Who Aren't In A TDP Be Drug Tested

According to the Federal Drug Testing Laws, employees of federal agencies who aren't in a TDP can be drug tested only when:

1. An employer has reasonable suspicion or probable cause to believe the employee is using a controlled substance unlawfully;
2. The employee returns to work after taking a leave of absence, and the employer has reasonable suspicion that the worker may be under the effect of drugs.
3. After an accident or injury has occurred in the workplace, reasonable suspicion arises that an employee might be responsible for the accident due to drug abuse.
4. The employee may be entering a position or serving in a job that requires certification as a condition of employment from a federal agency and requires drug testing to obtain the necessary certification.

Significant Changes Proposed With Time

In 2004, SAMHSA made proposals to the guidelines, eventually published in November 2008 and went into effect in October 2010. Those proposals brought significant changes to government policy as follows:

1. Other specimens may be collected for drug testing, apart from urine testing. These include hair, oral fluid, and sweat patch specimens.
2. On-site testing is allowed (i.e., collecting specimens immediately at the workplace).
3. Use of instrumented initial test facility (IITF) to identify negative specimens. IITF is an on-site laboratory that uses the latest high-performance automated drug testing techniques and equipment.
4. Training necessities for collectors, on-site testers, and medical review officers (MROs) who carry out the drug testing of federal employees were clarified.
5. Alternate specimen collection, which is the most significant part of the new guidelines, was introduced. The Federal agencies could collect an alternate specimen if an employee couldn't provide enough urine for a urine sample.
6. Workplaces must test for additional substances, including oxycodone, oxymorphone, hydrocodone, and hydromorphone.

These changes promote the increased use of drug tests as a positive tool for creating a safe workplace and increasing efficiency and integrity in drug testing operations. However, the changes weren't entirely without protest.

Many proposals changed the guidelines in response to the Federal Drug Testing Laws. Some proposed that Federal Agencies should have the ability to test for off-duty alcohol or illegal drug use outside of work. However, this proposal was not adopted.

Another proposal involved removing all workplace drug testing rules and guidelines, but that wasn't well-received either. Instead, the proposal was met with opposition from SAMHSA and the rest of the government.

Certification Of Laboratories And Different Requirements For Testing

SAMHSA and the Department of Labor subsequently revised the Federal guidelines for drug testing at the workplace. There began a certification process that conducted drug tests at federal workplaces. 

The process involved selecting an accredited laboratory through a multi-step procedure, which requires approval criteria and a system of regulating accreditation. Furthermore, the changes were focused on the collection and testing of urine samples, the necessities for certification of instrumented initial test facilities (IITFs), and the role of standards for collectors and medical review officers (MROs). 

Drugs are now detected much easier and faster; thus, this has proved to be more accurate and efficient. However, certain requirements were further introduced for drug testing:

• Specimen collection procedures: When collecting urine specimens, an MRO may collect samples by finger stick (finger prick or venipuncture) or using a designated container. It should be noted that the same collection procedure is required no matter which drug testing method is being done.
• Custody and control procedures that ensure donor specimen identity and integrity; mean that the collector must ensure that the specimen is properly labeled, packaged, and transported to the MRO.
• Initial and confirmatory test cutoff concentrations: The cutoff concentrations indicate the minimum amount of a drug (or its metabolites) present in a specimen to trigger the positive result. For example, using an initial cutoff concentration level of 300 nanograms per milliliter (ng/mL), a urine specimen would be tested for amphetamines, barbiturates, and benzodiazepines. Using a confirmatory cutoff concentration level of 500 ng/ml for all three drugs, the residual presence of these drugs in urine specimens that tested positive would be further confirmed.

• Result review and reporting: On completion of testing, an MRO reviews the test results and determines the validity of a positive specimen. If the test results are valid (i.e., contain an active drug or its metabolite or show a high concentration), the case is referred for administrative action, usually for disciplines, such as termination of employment or referral for additional medical evaluation and treatment. 
• Evaluation of alternative medical explanations for positive tests: The MRO may evaluate drug testing results and alternative explanations for these positive tests. These could include an unrelated medical condition, such as pregnancy or a mental disorder, or various factors that may affect the test result, such as employee fatigue.
• Laboratory certification: As mentioned above, the laboratory must be certified by SAMHSA and the Department of Health and Human Services.

What Happens If A Federal Agency Fails To Comply With The Guidelines?

As outlined above, the guidelines are strictly enforced by SAMHSA and the Department of Health and Human Services. SAMHSA and the Department of Labor will notify federal agencies who fail to follow these guidelines to remedy any wrongdoings immediately. 

Failing to follow the guidelines can suspend federal contracts, government funding loss, accreditation, or criminal prosecution. SAMHSA also has the authority to pursue criminal prosecution of federal agencies that violate the guidelines. 

Therefore, federal agencies must comply with the Federal Guidelines for Workplace Drug Testing.

Do Private Employers Have To Use Federal Drug Testing Guidelines Too?

If you're a private employer, you don't have to follow the federal drug testing guidelines, but you may want to use them so that your drug testing program looks as professional as possible. Private employers are free to devise their policies and procedures for drug testing and should be sure that they comply with state laws.

Some states require all employers to conduct some drug screening of employees, and some even require periodic alcohol screening. However, in other states, employers are not required to conduct drug testing for their employees. 

Some may opt to use a random drug testing policy. It allows them to choose whom they want to test, when they want to test them, and how many times an employee can be tested before they have grounds for an employment discrimination claim. 

Moreover, drug tests should be conducted only when necessary or convenient. Deciding to conduct drug testing does not mean that the employer has to use federal guidelines for drug testing. 

The conclusion is that you can implement a drug policy that best suits your business and maintain maximum privacy for employees who do not want to be tested at all.

Future Of Expanding MMJ Legalization

From the starting of time, there have been battles regarding MMJ. Some people claim that it's a harmless drug used for medicinal purposes. On the other hand, some claim that it's highly addictive and dangerous to society. 

However, the more conventional view is slowly becoming a reality with time. With the extensive research into MMJ effects, especially about autism, ADHD, and Alzheimer's disease, MMJ might likely be legalized in many states. 

The Federal Drug Testing Laws are being revised or changed to accommodate this new reality. Although MMJ remains a federally illegal substance, the number of states that permit its use is growing rapidly. 

In 2004, the United States Supreme Court ordered that the federal government not prosecute MMJ users who abide by state-mandated MMJ laws. It was a huge step in the fight to legalize and thus, nullify Federal Drug Testing Laws regarding marijuana.

In many states where MMJ is not yet legal, there has been legislation that prohibits organizations from refusing to hire or firing workers who test positive for marijuana use. However, the policy developments are not the same in all states. 

In Arizona, for instance, an employer is allowed to terminate an employee who tests positive for MMJ use but only if the MMJ was used when the employee was not on duty or call.

Therefore, it's essential to know your state-specific laws regarding MMJ and employer policies.

Conclusion

Federal Drug Testing Laws protect the workforce from drug abuse. Drug testing, along with a workplace drug program, establishes a means of preventing the use of drugs, detecting drug abuse, and helping users get help.  

Additionally, as time goes on, it is recommended that you revisit your drug policy and implement any changes to stay up to date with federal and state laws. In the 1990s, various workplaces began to enforce drug testing policies. 

Because of the technology and changes in drug testing, drug policies can be modified to best meet their specific needs. Further, by implementing federal drug testing guidelines, you can make a drug policy that is effective and professional. In the end, it's all about employee safety and well-being.

FAQ

What happens if a federal employee fails or refuses a drug test in a federal workplace?

The federal employee is subject to disciplinary action, up to and including immediate termination. The employee may be referred for a substance abuse evaluation, managed performance program, or other treatment. 

However, suppose an employee refuses to submit to the test. In that case, the employee should be provided with a written statement specifying the conduct that led to removal or suspension, including the violated rules and any legal rights and resources available.