Pensacola, FL (WorkersCompensation.com) — Between a dire need for more workers, the steady spread of legalized marijuana, the continuing opioid epidemic, and a recent court ruling, more employers appear to be backing off drug testing for employees and potential employees.
And that has some insurance organizations sounding the alarm.
“The trend of employers foregoing employee drug screening is raising concerns amongst workers’ compensation insurers about workplace safety and increased risk. This could potentially lead to a sharp increase in workers’ comp claim frequency and severity,” said Mark Friedlander, director of corporate communications for the Insurance Information Institute.
Recent news reports indicate that some employers have thrown in the towel on trying to find “clean” workers who can pass a urine test. One Appalachian Chamber of Commerce official told the Chicago Tribune last month that with 60% of job applicants unable to pass tests, many of them showing up with opioids in their systems, some firms have dropped screening requirements altogether.
“Our businesses need warm bodies right now,” a regional chamber president told the newspaper.
And it’s not just small businesses. Amazon, one of the world’s largest employers, announced in June that it would stop testing for cannabis for worker positions not regulated by the federal Department of Transportation.
Even some municipalities are high on relaxing the screening. The City of Norfolk, Virginia, said that staring in July, it will no longer test potential workers who aren’t in safety-sensitive positions. Virginia this year was one of several states that legalized recreational marijuana for adults.
And in Iowa, the state Supreme Court handed down an opinion June 25 that held that employers cannot submit all employees to drug-testing – only those in safety-sensitive positions.
Some recent reports suggest that nationwide, drug use among employees in recent years has reached an all-time high – with as many as 70% of workers acknowledging the use of some drugs while working, according to U.S. Drug Test Centers, a testing company. In 2020, a study by Quest Diagnostics found a sharp increase in positive drug-test results among U.S. employees.
By this year, though, more than 15 months into the pandemic, the testing landscape appears to have changed significantly. Fewer than 2% of employers said publicly, anyway, that they continue to require pre-employment or random drug tests, the American Addiction Centers has reported.
More employers will likely join the trend and drop the testing requirements in coming months, industry experts said.
“A lot of companies now are in an existential fight, and they need workers,” said Mark Pew, senior vice president for product development and marketing at Preferred Medical. “Some of them are saying, ‘Maybe we say no more testing just so we can bring people in.’”
The trend does not yet appear to have affected post-accident testing by employers, nor insurance defense tactics.
“I would be shocked if anyone is dropping post-accident testing,” said Mike Fish, a comp defense attorney in Birmingham, Alabama.
But even with illicit drugs or cannabis showing up in an injured workers’ blood after an incident, that’s no guarantee that the claim will be successfully denied. Remember the 2019 South Carolina case in which a worker driving a truck was severely injured and settled a claim for $3.8 million? Although toxicology tests showed that the man had consumed marijuana before the accident, that did not prove impairment or that the drug was the cause of the accident, claimants’ attorney Catherine Meehan said at the time of the settlement.
Employees and insurers should continue to augment post-accident testing with eyewitness accounts and other evidence of an injured worker’s behavior and possible drug use, Fish noted.
And even if businesses continue testing after injuries, the move toward less preemployment and random testing is troubling to insurers.
The International Risk Management Institute has not studied the issue in-depth, but “I would agree that reduced drug testing on the job site will likely lead to increased accidents, injuries, claims, etc.,” said IRMI Senior Research Analyst Christine Fuge.
The Insurance Information Institute’s Friedlander said that his organization’s research has shown that workers who abuse drugs are two to five times more likely to file workers’ compensation claims and have other workplace issues. And while workplace drug testing doesn’t automatically mean lowered comp premiums, a tough drug policy will often lead to fewer claims and a lower experience rating, the Insurance Information Institute explained.
A hands-off drug policy “is a scary situation,” Fish noted. “The employer is conceding that they’re OK with a worker having at least some amount of drugs in their system. What kind of liability are you inviting with that?”
A number of state legislatures this year moved to clear the air over when drug tests can affect comp claims, the National Council on Compensation Insurance has reported.
North Dakota and Alabama lawmakers passed one of the strongest laws, creating presumptions that a workplace injury is due to marijuana if the worker’s drug test is above a certain limit. If the employee refuses to submit to a test after the accident, then he or she forfeits benefits, the law notes.
Montana and Nevada approved similar measures, but granted exceptions for employees who are certified to use medical marijuana.
For some employers, there may be some bright spots in the haze. At least 25 states have ended supplemental unemployment benefits that were granted during the pandemic. That could give sidelined workers an extra incentive to return to the workforce.
And while drug testing may be going up in smoke for many firms, testing employees’ actual mental abilities may be gaining ground.
Predictive Safety, a Colorado-based company, is one of several companies that has been producing cognitive testing kits for the past few years. AlertMeter, a smartphone-based app, tests users’ cognitive ability and fitness for work with a series of graphics and puzzles. It is designed to flag cannabis impairment, intoxication and fatigue.
The firm notes that one Colorado manufacturer saw workers’ comp claims drop by 70% after it began using the meters. The findings were confirmed by Pinnacol Assurance, a compensation insurance carrier, said Peri Erygit, manager of communications for Predictive Safety.