Excerpted from a Seyfarth Shaw LLP Blog by Adam Young, A. Scott Hecker and Craig Simonsen

In 2021, positive drug test results among America’s workforce reached its highest rate since 2001, up more than 30% in the U.S. according to a new analysis released by Quest Diagnostics.

Employers face mounting challenges relating to employee drug impairment and possession in the workplace. The Quest Diagnostics study, based on more than 11 million drug tests collected in 2021, reveals insights into workforce drug use as employers grapple with creating safe work environments amid an ongoing recruitment and retention crisis.

The overall positivity rate between January and December 2021 was 4.6 percent, compared with 4.4 percent in 2020. The 2021 positivity rate represented an increase of 31.4 percent from the all-time low of 3.5 percent just 10 years prior.

The data combines employment-related testing from private employers, federally-mandated testing (such as DOT-regulated drivers and pilots) and federal employees.

Positivity for marijuana continues upward climb
The largest drivers for these increased rates have been positivity for marijuana, particularly in states that have legalized recreational use. Positivity rates for marijuana in the general U.S. workforce, based on more than 6 million urine tests, continued an upward climb, increasing 8.3 percent, for the highest positivity rate ever reported.

Over the last five years, positivity for marijuana in the U.S. workforce increased 50 percent.

Workforce drug positivity increased for methamphetamine and cocaine
The positivity rate for cocaine increased 46 percent, its highest spike since 2006. Methamphetamine increased 26.4 percent, exhibiting year-over-year increases for the last 5 years.

“Drug use affecting the work environment is a complex problem that is not going away,” said Jenny Burke, vice president of impairment practice at the National Safety Council. “When workers use impairing substances, it can create incidents that compromise the safety of other workers and, in some cases, the general public. Employers should have the right and ability to maintain a substance-free workplace and the use of drug testing, including oral fluid in addition to urine.”

The National Safety Council continues to recommend a zero-tolerance policy for marijuana in the workplace for employees in safety sensitive positions.

During the recent pandemic downswing, many employers are contemplating returning their workforces to physical, brick-and-mortar worksites and are taking the opportunity to revisit past policies. All employers should consider how returning to in-person work will affect employee safety across the board and should plan accordingly, including in the face of rising drug test positivity.

Though recreational marijuana use may be legal in certain U.S. jurisdictions, that does not negate the potential safety and health effects it could have on places of work. To mitigate safety and enforcement risks from OSHA and DOT, employers should communicate clear policies and consider providing relevant training to their employees concerning the impacts of drug use on work environments.

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