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Drug-Free Workplace Act Turns 25

Passed by Congress in 1988, the Drug-Free Workplace Act was a limited -- but effective -- beginning to the workplace's war on drugs.

Monday, November 18, 2013
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When then-President Ronald Reagan signed the Drug-Free Workplace Act of 1988 into law, the immediate direct impact was minimal. After all, the law only requires some contractors and all federal-government grantees to provide a drug-free workplace as a precondition for receiving a contract or grant from a federal agency.

Yet, while the law, which has its 25th anniversary this month, had little direct impact on America's overall workplaces, it served as the impetus for more stringent, effective legislation aimed at public safety within transportation -- especially the Omnibus Transportation Employee Testing Act of 1991. Most of all, the 1988 law has helped employers focus on the issue of workplace drug abuse and effective measures that could reduce its prevalence.

"The good news is that, among employers who include drug testing, we're seeing much lower positivity rates overall since 1988," says Barry Sample, director of science and technology for Quest Diagnostics Employer Solutions, a provider of workplace drug tests in Madison, N.J. "That may not be true of all workplaces, but it is where they do testing."

Specifically, according to Quest Diagnostics' 2013 Drug Testing Index, the annual positivity rates for urinalysis drug tests (pre-employment, random, etc.) for the combined U.S. workforce (public and private) have fallen from 13.6 percent in 1988 to 3.5 percent up to June 2012. Quest's data is based on more than 125 million tests.

 When it comes to specific drugs, data from DTI for January 2012 to June 2012 shows that marijuana continues to be the most commonly detected drug, with amphetamines ranking second. Other drugs, such as cocaine, are seeing a decline in the workplace.

The flipside of that good news, adds Sample, is that employers need to be aware of increasing positivity rates for marijuana and prescription drugs, which can have a direct impact on workplace safety and productivity.

"We've seen year-over-year increases in people testing positive for prescription drugs," he says. "What employers may not know is that the number one prescribed drug in America is some formulation that includes the painkiller hydrocodone, which can be addictive. Employers need to understand the potential impact of these types of prescription drugs on workplace safety.

For example, Sample explains the positive test rate among employees for prescription opiates such as hydrocodone increased about 40 percent from 2005 to 2009. The rates continue to go up each year since. He adds that workers who were tested for drugs after accidents are four times more likely to have opiates in their systems than those tested before being hired.

Mark de Bernardo, executive director of the Institute for a Drug-Free Workplace, a nonprofit business coalition near Washington, and a senior partner at Jackson Lewis, an employment law firm in Reston, Va., says that the biggest change in the 25 years since the law was enacted is that employers have won their war on drugs.

"Drug usage in the workplace is down. Message received," he says. "Compared to 1988, America's workplaces are moving in the right direction, and that is recognized by employers and employees alike."

de Bernardo says that before Congress passed the 1988 Act, there really were no workplace drug policies in place. But by 1990, things began to change dramatically as employers found out that having effective substance abuse programs in place was well worth the effort.

"All along, employees really are on the same side as employers," he says. "Most are just intolerant of drug abusers on the job."
In the wake of the 1988 Act, employers also began to offer employee assistance programs with counseling and treatment, which was also effective and laudable, de Bernardo says.

"Company-sponsored programs are the most effective ways to help employees," he says. "For one thing, they can help the employee retain their job." Other benefits include possible family counseling and support of other employees in those programs.

According to de Bernardo, two areas where employers have not been successful are the misuse and abuse of prescription drugs and marijuana use.

"Changing societal attitudes toward marijuana are a tough challenge for employers," he says, adding that prescription drugs often are not understood by employers. And employees often think it is OK if they take their spouse's Vicodin, ignoring the idea of getting hooked on painkillers because there is so much naiveté on drug addiction.

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"It's not nearly on employer radar screens as much as it should be," says de Bernardo. "Given the liability for industrial accidents or product defects or workplace injuries involving prescription drug abuse, employers cannot afford not to address this issue."

Today, drug testing is legal in all 50 states (it's illegal in two cities, San Francisco, Calif., and Boulder, Colo.,) but a handful of states do have restrictions.

When it comes to candidate screening compared random testing of employees, de Bernardo says pre-employment drug screening today is very common and actually is the fairest, least intrusive type of testing for employers to use.

"There is no subjectivity at all as there would be ‘for cause,' which is inherently subjective," he says. "Asking people to select people who may not be qualified to select people is a risk for employers." Another good strategy is universal random testing, with computer-generated selection criteria, such as social security number.

"Random testing is not only the fairest, but the best at deterrence and detection," he says. "The bigger impact by far is with deterrence. If employees are subject to random drug testing, they may come to realize that it's not worth jeopardizing their job. They either quit using drugs or don't start. Losing employment is a deterrent. The most effective weapon in the war on drugs is a paycheck."

In terms of lessons learned in the past 25 years, de Bernardo says the most critical one is uniformly enforcing any workplace drug-testing policy.

"Once you decide on it, you have to live by it, having the same response to the same violations, no matter who it is," he says. "If it's not applied uniformly and fairly, it's an invitation to litigation."

Finally, de Bernardo says employees are natural allies with employers on the issue. He says employers must enlist the support of employees -- a strategy that can go a long way in reducing workplace drug use.

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