Could your employees be trying to “cheat” drug tests, substituting someone else’s sample to conceal their cannabis use?

Drug test cheating surged last year among U.S. workers, laboratory chain Quest Diagnostics found in its analysis of nearly 10 million drug tests. The percentage of workers whose drug test showed signs of tampering increased by more than six-fold in 2023 when compared with the prior year—the highest rate in more than 30 years of annual reporting—Quest revealed in its Drug Testing Index this past spring.

Quest reported a 633% increase in substituted urine specimens, and invalid urine specimens increased 45.2%. Along with rising rates of substituted or invalid specimens, Quest noted historically high rates of both general U.S. workforce drug positivity and post-accident marijuana positivity.

According to Quest, overall drug positivity is at the highest level in more than two decades—up more than 30% from an all-time low of 3.5% in 2010–2012. The laboratory chain also noted a sharp increase of 114.3% in post-accident positivity in the general U.S. workforce between 2015 and 2023.

A bigger danger: Opioid use, overdoses

While employees showing up for work impaired by alcohol or marijuana is serious, opioid abuse is a far more significant, sometimes fatal danger. States, nonprofits, and even the White House have taken steps to help employers deal with workplace overdoses.

This spring, the California Occupational Safety and Health Standards Board (OSHSB) granted a petition from the National Safety Council (NSC) to consider requiring overdose reversal medications in workplace first-aid kits.

The OSHSB directed the state’s Division of Occupational Safety and Health (Cal/OSHA) to convene an advisory committee to consider amendments to state regulations that would require employers to provide employees access to opioid overdose reversal medications and train employees in their safe use.

Illinois enacted legislation this summer making opioid overdose reversal medication, such as naloxone, available in state workplaces. The NSC applauded the state’s action, pointing out that fatal workplace overdoses have increased by more than 600% since 2011. Overdoses account for nearly 10% of all workplace fatalities in the United States, according to the group.

The NSC also announced this spring that it’s ramping up its efforts to combat workplace overdoses, launching several new initiatives. The NSC’s new overdose response initiatives include the following:

• An eLearning course covering the impacts of opioid overdoses in the workplace, signs and symptoms of an overdose, the administration of opioid overdose reversal medication, and the incorporation of those medications into workplace safety plans;

• An online Workplace Wellbeing Hub, an interactive resource designed to provide workplaces with education and tools that can be implemented to address the causes of impairment, injuries, and fatalities, starting with substance use; and

• A partnership with Emergent BioSolutions, the maker of Narcan (naloxone), which allows employers to purchase the medication on the NSC’s website and have it delivered directly to the workplace.

Last fall, the White House released employer guidance and resources to address problems posed by workplace substance use and overdoses. The federal guidance recommended that employers take several risk-reduction steps, including reviewing and updating their policies, procedures, and practices to reduce the risk of injuries that could require treatment with opioids; examining how opioids are used under their health and workers’ compensation plans; and assessing whether a lack of medical or disability leave creates an unintentional incentive to use opioids following an injury.

Drug testing requirements in transportation

Drug testing is required in safety-sensitive transportation occupations, including for commercial motor vehicle (CMV) drivers.

Department of Transportation (DOT) drug and alcohol testing requirements for all safety-sensitive transportation positions appear in 49 Code of Federal Regulations (CFR) Part 40. The Part 40 requirements apply to safety-sensitive occupations across all modes of transportation, including aircraft mechanics, armed transit security officers, bus drivers, CMV drivers, pilots, pipeline controllers, railroad locomotive engineers, ships’ captains and others operating commercial vessels, and subway operators.

The drug testing for all safety-sensitive transportation positions is a five-panel test for controlled substances, including amphetamines and methamphetamines (such as MDA, MDEA, and MDMA), cocaine, marijuana, opiates (opium and codeine derivatives), and phencyclidine (PCP).

Employers across all modes of transport must test employees for marijuana use, but there are no requirements for testing employees in safety-sensitive positions for cannabidiol (CBD) use. Workers should be mindful, however, that hemp, hemp oil, and CBD products may contain low concentrations of tetrahydrocannabinol (THC) that could trigger a positive test result for marijuana. Worker use of CBD products isn’t a legitimate medical explanation for a laboratory-confirmed positive result for marijuana.

The Federal Motor Carrier Safety Administration (FMCSA) also has motor carrier-specific drug and alcohol policies that appear in 49 CFR Part 382.

The minimum annual percentage rate for random drug testing of CMV drivers remains at 50%. The FMCSA raised the minimum rate from 25% beginning with calendar year 2020, and the rate hasn’t changed since then. The minimum rate for random alcohol testing is 10%.

The FMCSA’s administrator must increase the minimum annual random testing percentage requirement whenever the rate of positive tests is equal to or greater than 1%. The administrator may lower the rate to 25% only when the positivity rate is less than 1% for 2 consecutive calendar years.

Random testing requirements apply even when CMV drivers are at home and off-duty. The FMCSA requires preemployment and post-accident drug and alcohol testing in addition to random testing.

When tests confirm the presence of drugs at designated cutoff levels, a motor carrier’s designated employer representative (DER) must immediately remove the driver from duty. The driver then must complete a substance abuse treatment and return-to-duty process under the guidance of a substance abuse professional (SAP).

Before returning to their driving duties, drivers must undergo a directly observed return-to-duty drug test. Following their return to duty, drivers are subject to at least six follow-up tests during the first year. SAPs may also require follow-up testing for a maximum of 5 years.

While motor carriers and other transportation employers typically use contract diagnostic laboratories to perform urinalysis and rely on medical professionals to review test results, employers are fully responsible for their testing contractors’ compliance.

The technicians and professionals in a drug and alcohol testing program include:

• Breath alcohol and screening test technicians, individuals trained to conduct alcohol screening and confirmation tests, document test results, and transmit results in a timely and confidential manner;

• Consortium/third-party administrators (C/TPAs), service agents who coordinate a variety of drug and alcohol testing services for employers;

• Department of Health and Human Services (DHHS)-certified laboratories that evaluate urine specimens submitted by collectors, performing a chemical analysis to determine the presence and concentration of controlled substances;

• Medical review officers (MROs), licensed physicians trained and certified to review lab results and validate whether a test is positive;

• SAPs, or licensed or certified healthcare professionals with knowledge of the diagnosis and treatment of alcohol and controlled substance-related disorders; and

• Urine collectors, or individuals trained to collect and ship urine specimens and ensure collection site security and integrity.

Testing, return to duty

All drivers must submit to drug and alcohol tests under “direct observation” conditions, when an observer of the same gender as the employee watches the employee urinating directly into a collection container.

Any driver who tests positive or refuses an alcohol or a drug test must be removed from duty. The employer must then provide the driver with a list of acceptable SAPs who can oversee the driver’s treatment and return-to-duty process.

SAPs must submit reports to the FMCSA’s Drug and Alcohol Clearinghouse detailing a driver’s return-to-duty compliance that include the following information:

• Driver’s name, date of birth, commercial driver’s license (CDL) number, and state of issuance;

• Date of initial SAP assessment; and

• Date the SAP determined the driver demonstrated successful compliance with education and treatment requirements and is eligible for return-to-duty testing.

Clearinghouse, testing requirements changes

The FMCSA’s Drug and Alcohol Clearinghouse is a central repository of records of CMV drivers’ drug and alcohol violations. The purpose of the Clearinghouse is to prevent drivers from concealing drug or alcohol violations by moving to another employer or jurisdiction, and the agency maintains the Clearinghouse database. Motor carriers must check the records of current and prospective drivers in this database for drug or alcohol violations and compliance with return-to-duty requirements.

Clearinghouse records include driver drug and alcohol violations, whether a driver has completed the return-to-duty process, follow-up testing after a positive test, or refusals to test.

Employers must make annual checks of Clearinghouse records for all current employees, but they must first get drivers’ electronic or written consent before querying the Clearinghouse database.

Employers also must query the Clearinghouse when considering any CMV drivers for employment.

In 2021, the FMCSA created new requirements for state driver’s licensing agencies (SDLAs). The rule became effective November 8, 2021, but full compliance with the new regulations is required by November 18 of this year.

Under the FMCSA regulations, SDLAs must:

• Access and use information obtained through the FMCSA’s Clearinghouse.

• Not issue, renew, upgrade, or transfer a CDL or commercial learner’s permit (CLP) for any person prohibited under FMCSA regulations from performing safety-sensitive functions, including driving a CMV, due to one or more drug and alcohol program violations.

• Remove CDL or CLP privileges from the driver’s license of an individual subject to federal CMV driving prohibition, resulting in a downgrade of the license until the driver fulfills all federal return-to-duty requirements.

In 2022, the FMCSA denied a request from the Alliance for Driver Safety & Security (Trucking Alliance) to allow the use of hair testing to determine a CMV driver’s drug use. Motor carriers, including J.B. Hunt Transport, Inc.; Knight Transportation; and Swift Transportation, argued that hair testing was more effective for eliminating “lifestyle drug users” from the CMV driver pool.

Last year, the DOT adopted a new regulation allowing oral fluid drug testing as an alternative to urine testing for safety-sensitive positions in all regulated industries—aviation, motor carrier, rail, and transit. However, as of August 2024, the DHHS hasn’t certified any laboratories to perform oral fluid drug testing.

The risks posed by alcohol and drug abuse range from worker impairment to fatal workplace overdose. If you’re an employer in the transportation sector, you must test workers in safety-sensitive positions for alcohol and drug use.

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