Despite the fact that marijuana is illegal in Idaho, positive employment-related drug tests for marijuana in our state have risen a whopping 80 percent over the last six years, from 1 percent in 2010 to 1.8 percent in 2016. The rate of positive tests for all drugs is also on the rise in Idaho, increasing from 2.7 percent in 2010 to 4.0 percent in 2016. These statistics suggest that if your business hasn’t dealt with an applicant or employee testing positive yet, it may soon.
Rates are rising in the U.S.
According to a recently released report from Quest Diagnostics, American workers tested positive in workforce drug tests in 2016 at the highest rate in 12 years. Quest analyzes the results of millions of drug tests that it conducts for U.S. employers and releases the aggregate results each year. Its 2016 report was based on more than 10 million workplace urine drug test results, and found the overall positive test rate for the combined U.S. workforce was 4.2 percent, a 5 percent relative increase over the previous year’s rate of 4.0 percent. The last time the drug testing positivity rate was higher was in 2004, when the overall positivity rate was 4.5 percent.
Methamphetamine and cocaine
The recent Quest report reveals the 2016 Idaho positive test rate for amphetamines, which includes amphetamines and methamphetamines, exceeded the national rate (1.5 percent in Idaho versus 1.1 percent nationwide). The 2016 amphetamines positive test rate for both Idaho and for the general U.S. workforce went up over the previous year.
Nationally, the positive rate for cocaine in urine testing increased 12 percent in 2016 for the general U.S. workforce. While that annual percentage increase is high, the percent of U.S. workers who tested positive for cocaine in a urine test by Quest in 2016 was a relatively low 0.28 percent. The positivity rate for cocaine in Idaho in 2016 was 0.056 percent, lower than the national rate.
Idaho employer drug testing considerations
Before conducting any drug testing, Idaho employers should have a written policy in place that describes the types of testing that may be imposed on employees and applicants and includes a statement that violation of the policy may result in termination. Employers are permitted to make drug testing a condition of employment or continued employment, and may test (according to their policy) as a baseline as well as for pre-employment, post-accident, random, return to duty, follow-up, and reasonable suspicion purposes.
According to Idaho Code, if an employer discharges an individual and shows the employee: (a) tested positive; (b) refused to provide a sample for testing; (c) altered or attempted to alter his/her sample; or (d) submitted a sample that was not his or her own, the employee will be found to have been discharged for work-related misconduct and will be denied unemployment benefits. If an employee or applicant tests positive, he or she must be provided written notice of the test result, including the type of substance involved. The individual then must be allowed to request a retest of the same sample and the opportunity to explain the positive test result with a medical review officer or other qualified person.
Employers must bear the cost of all drug testing for current employees. In addition, employees must be paid for the time spent while the drug test is conducted. Employers should keep drug test results and any other medical information confidential, by separating medical and drug testing information from other personnel files and limiting who has access to the information.
Idaho employers with operations in other states must keep in mind that employees may have certain protections related to drug testing and positive results based on applicable state laws. For example, Nevada employees who are valid medical marijuana users have the right to a reasonable accommodation unless the accommodation would pose a threat of harm or danger to persons or property, impose an undue hardship on the employer, or prohibit the employee from fulfilling any of his or her job responsibilities. It is important to know the drug testing requirements that apply to your business so you handle positive drug test results properly.
Dean Bennett is a commercial litigation and employment law attorney with Holland & Hart LLP. He provides employment counseling to clients on matters related to compliance with state and federal laws governing the workplace, ranging from day-to-day issues and best practices to urgent workplace decisions. He can be reached at firstname.lastname@example.org