William Judge, JD, LL.M. & Nick Hartman (C-DER) | Drug Screening Compliance Institute
THE CORONAVIRUS (COVID-19) pandemic is on everyone’s mind. Employers are faced with a number of virus-related issues. But employers must remember that marijuana, alcohol, opioid, and other illicit substance-use issues have not gone away. In fact, during these stressful times, drug and alcohol use has gotten worse.
COVID-19 & Substance Use
Studies suggest that the fears and stress from COVID-19 have resulted in significant self-medication. For example, Newsweek recently reported the following1:
• Alcoholic beverages sales shot up by 55% the week of March 21, 2020.
• Hard liquor sales increased by 75% compared to the same period in 2019. • Beer and wine sales were up by 66% and 42%, respectively.
Marijuana continues to lead the way as one of the most common drugs of abuse (second to alcohol). A recent report in March from Jane Technologies, a leading cannabis e-commerce platform, found that of 1,300 stores surveyed in January 2020, the average retailer saw increases between 52% to 130% year-over-year.2 Marijuana beverages and edibles saw significant sales increases in California, according to the cannabis analytics firm Headset. According to MKM Partners Research, “Cannabis demand has surged in Florida,” adding that operators were seeing an average increase of 36% in THC product sales for the week ending March 19.3
It is too soon to know definitively how this pandemic has impacted drug and alcohol use. Still, a report by the Association of American Medical Colleges reported that an analysis of 500,000 urine drug tests showed worrisome trends: an increase of 32% for non-prescribed fentanyl, 20% increased use of methamphetamine, and 10% increased use of cocaine from mid-March through May. Suspected drug overdoses climbed 18% in the same period, according to the University of Baltimore’s Center for Drug Policy and Enforcement’s Overdose Detection Mapping Application Program, a national tracking system that provides data on suspected drug overdoses in real time.4
A survey of papers published between 1990 and 2015 showed that significant economic downturns might influence illegal drug use.5 With the national July unemployment rate of 10.2% (ranging from 3.6% in Idaho Falls, Idaho to 34.3% in Atlantic City, New Jersey), stress is creating a uniquely stressful environment with no end in sight.
Despite trucking being “deemed” an essential industry, trucking jobs have taken a hit. On May 8, 2020, Business Insider reported that in April alone more than 88,000 truck drivers lost their jobs.6
If you have workers teleworking, there are other problems. In a recent Fishbowl survey of more than 12,000 professionals from across the U.S., nearly 42% said they drink at home during working hours. When asked, “do you drink at home during working hours,” the survey showed as follows:
• Overall, 41.76% responded that they did drink during business hours while working from home.
• North Carolina had a 47.7% respond yes, followed closely by Oregon (47.58%), Connecticut (47.41%), Colorado (46.93%), and Washington (46.3%).
• Arkansas had the lowest affirmative responses at 28.85%, followed by New Jersey (32.94%), Virginia (35.47%), Michigan (37.83%), and Missouri (37.96%).
• The highest percentage (49.14%) of employees responding yes worked in advertising and marketing agencies.7
Drug & Alcohol Testing
But even before the epidemic hit drug use was increasing. The latest information from the Quest Diagnostic’s annual Drug Testing Index showed positive rates increased nearly 5% between 2017 and 2018 in the general U.S. workforce, more than 25% higher than the 30-year low seen between 2010 and 2012.8
Federally mandated test-positive rates for marijuana increased by nearly 8% between 2017 and 2018 and almost 24% since 2014.8 Perhaps more concerning, the federally mandated post-accident positivity test rate for all substances was up more than 51% between 2017 and 2018 and increased by nearly 81% between 2014 and 2018.9
The Federal Motor Carriers Safety Administration (FMCSA) implemented its Clearinghouse database to begin tracking DOT drug and alcohol testing violations. Since its inception in January of 2020, there have already been a total of 25,761 violations reported.10
Long before the coronavirus, the U.S. was in the middle of an opioid crisis. From 1999 to 2017, more than 700,000 people in the U.S. died from drug overdoses. More than 60% of drug overdose deaths involved an opioid. The Centers for Disease Control and Prevention (CDC) reports that 128 Americans die every day from an opioid overdose.11 This problem has not gone away and continues to impact our nation’s workplaces significantly.
Employers must prepare to address these issues. In doing so, employers must realize that in addition to regulated employees, most workplaces are made up of non-regulated workers as well. State laws apply to tests conducted on non-regulated workers.
Please be aware that some states have “mandatory” rules that must be followed. (See the map above). Many of the states have very complicated requirements. The failure to follow the state’s rules can cost hundreds, thousands, and even more than $1 million.12
In addition to the mandatory states, employers must be aware of the limitations resulting from new laws authorizing medical and personal use of marijuana. (See the map next page.)
Federally Regulated Positions
The Department of Transportation (DOT) is committed to maintaining public safety while allowing transportation industries to operate safely during this period of national emergency. Employers must continue to comply with DOT testing and training rules for all regulated employees conducting safety-sensitive functions, following 49 CFR Part 40. Regulated testing includes pre-employment and return-to-duty screening in which a negative drug test result must be on file before any regulated work can be performed.
With potential limitations or unavailability of collection sites or drug screening service providers, employers are recommended to consider mobile collection options where needed. If employers are unable to conduct DOT drug or alcohol training or testing due to COVID-19-related supply shortages, facility closures, state or locally imposed quarantine requirements, or other impediments, they must continue to comply with existing applicable DOT Agency requirements to document why a test was not completed. If required training or testing can be conducted later (e.g., supervisor reasonable suspicion training at the next available opportunity, random testing later in the selection period, follow-up testing later in the month), you are to do so in accordance with applicable modal regulations. Employers are reminded that for any employee that, for whatever reason cannot comply with DOT regulations, should be prohibited from performing any DOT safety-sensitive functions.
Employers should revisit contingency plans to ensure they are current and effective for the current outbreak conditions. For example, these plans should include the availability of collectors and collection sites, and alternate/back-up MRO, as these may have changed as a result of the national emergency.
Employers should also have regular communications with service agents regarding the service agent’s availability and capability to support your DOT drug and alcohol testing program.
Additional guidance on compliance with DOT drug and alcohol testing regulations during these challenging times can be found at www.transportation.gov/coronavirus.
Maintaining a compliant workplace drug and alcohol testing program is complicated, but it is an employer’s duty. The rules and regulations change all the time. Employers must evaluate their screening program and implement any necessary changes in today’s workplace environment(s). Provide training for managers and supervisors to recognize substance use in the workplace and the proper actions to take in those situations. Employers should also routinely review their substance abuse policies and procedures to ensure they remain compliant to avoid unwanted complications, liabilities, and financial
Bill Judge is an attorney and Researcher at Drug Screening Compliance Institute, LLC. He focuses on both federal and state rules that impact workplace drug testing programs. He can be reached at www.AskBillJudge.com or at [email protected]
5 Nagelhout et al, How economic recessions and unemployment affect illegal drug use: A systematic realist literature review, Int. J Drug Policy, 2017 Jun;44:69-83; https://pubmed.ncbi.nlm.nih.gov/28454010/.
6 Business Insider, https://www.businessinsider.com/trucking-bloodbath-truck-drivers-lost-jobs-april-jobs-report-2020-5.
7 https://www.fishbowlapp.com/insights/ 2020/04/20/coronavirus-survey-results-42-of-employees-drinking-while-working-from-home/.
11 As of 7/1/2020 https://clearinghouse.fmcsa.dot.gov/Resource/Index/monthly-report-June2020/.
13 See, Doyon v. Home Depot, Inc., 850 Fed. Supp 125 (1994); Tomick v. UPS, 135 Conn. App. 589 (2012) (punitive award later reversed; Estes v. ConocoPhillips Company, 184 P.3d 518 (Okla. 2008).
Graphics courtesy of William Judge, JD, LL.M. & Nick Hartman (C-DER) | Drug Screening Compliance Institute.
Image credit: ISTOCK.COM/LESZEKCZERWONKA