In this installment of our Workplace Strategies Watercooler 2025 podcast series, shareholders Christina Mallatt (Indianapolis), who co-chairs the firm's Drug Testing Practice Group, and Brent Kettelkamp (Minneapolis) discuss the history of drug testing and the current dynamics of this complex and rapidly evolving field. Brent and Christina focus on the implications of legal marijuana use and the growing prevalence of opioid use, whether legal or otherwise. The speakers also explore how employers can establish and enforce effective and legally compliant drug and alcohol testing policies and protocols that are specifically tailored to meet their workplace safety requirements and align with their company culture.
Transcript
Announcer: Welcome to the Ogletree Deakins Podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast, so we can get your feedback and improve our programs. Please enjoy the podcast.
Brent Kettelkamp: Hey, everyone. We are doing a nuts and bolts of drug and alcohol testing rewind for those that were not able to make it to our presentation at Workplace Strategies 2025 here in Las Vegas. I’ll introduce myself. My name is Brent Kettelkamp. I’m a shareholder in Ogletree’s Minneapolis office, and I focus a lot of my advice and counseling work in the drug testing space in the Midwest.
Christina Mallatt: And Christina Mallatt coming to you live and direct from Workplace Strategies 2025 in beautiful Las Vegas. Happy to be here. I’m a shareholder in the Indianapolis office. I am an employment litigator, and I also co-chair the firm’s Drug Testing Practice Group.
Brent Kettelkamp: So, we want to run through three things here
today. First, just give you a quick history of where we were in
drug testing. Second, where we are now. And then third, where
we’re going, or where should we go in drug testing. To set
the stage here, I wanted to provide some background, as some
important statistics that we’re seeing in drug abuse across
the nation. 48 million people have a substance abuse disorder. 29
million of those, it’s alcohol, 27 million with a drug abuse
disorder. I really think that this drug abuse statistic is going to
exponentially increase. Christina will talk a little bit later
about the abuse and increase in drug abuse with prescription
drugs.
So, I think these are some serious statistics that reflect why drug
testing is important and why employers continue to be interested in
drug testing to maintain a safe workforce. Now, what we’ve
observed obviously in the past is there was a war on drugs. Now,
really the question is what war on drugs are we looking at now? It
was marijuana. Now, as we’ll talk about and we’ll see,
times are changing and what people and what our culture observed as
important is no longer an emphasis or that important anymore. What
we mean by that is just one decade ago, no states in the country
allowed for marijuana for recreational use. Just think how quickly
that changed.
In 2012, Colorado and Washington were the first states to legalize
recreational use of marijuana, and now we’re seeing a
majority of states have either recreational or medical marijuana
laws on their books. I think the biggest statistic that sticks out
to me is the fact that 1 in 10 adults now say that marijuana should
not be legal at all, and the rest say it should be legal in some
capacity. That’s a critical change in how we as a culture
have observed marijuana usage. So, just some quick stats for you on
where medical marijuana is legal. About three-fourths of the states
now have a medical marijuana law on the books, where it’s
legal in some capacity.
Some states have anti-discrimination provisions that are attached
to it where you generally cannot discriminate against an employee
for testing positive on a random or a pre-employment test due to
their card-carrying status. There’s other states where
there’s no specific law on the books or no
anti-discrimination provision. The third category relates to states
with medical marijuana laws that do not explicitly contain
protections for employees or applicants, but courts instead have
created their own protections. Now, jumping to where recreational
marijuana is legal, that’s about half the states. Some states
are still holding strong, where Florida, South Dakota, and North
Dakota recently rejected a bill.
But I think the new trend that we’re seeing relates to now
the psychedelic drugs, and Massachusetts had an unsuccessful ballot
measure, which would’ve permitted individuals to grow,
possess, and use natural psychedelic substances. But they’re
not the only state that has considered this. New Mexico recently
passed a bill approving of the usage of medical mushrooms for
various medical reasons, such as depression, PTSD, substance abuse
disorders, and end-of-life care. This is the third state to approve
the usage of magic mushrooms, so to speak, in certain contexts.
This, from our perspective, is the new and can be viewed as the new
potential marijuana, where now our public opinion is shifted in
marijuana, and the next wave, so to speak, is these psychedelic
mushrooms.
Finally, Christine will touch on this a little bit more, but
prescription drugs, again, is maybe wave two of the important
aspects of making sure employers have a drug testing policy that
adequately addresses prescription drugs because we’re seeing
in our culture that prescription drugs are being abused and
it’s exponentially increasing. So, I’ll throw it now to
Christine to talk about where we are, and where we’re going
and what we can do.
Christina Mallatt: Sure thing. Thanks, Brent. So, we just had a
great discussion with our group earlier this morning. Now that we
have the big picture that Brent provided regarding the landscape
and where we are, where we’ve been, what I’d like to
shift towards is some discussion to provide some insight on how in
this pretty complex and rapidly changing environment to not only
establish drug testing policies and protocols that are workable and
sensible for your business, but also and importantly ensure that
they are legally compliant because that’s ultimately the goal
here. So, this just isn’t as easy as it used to be, given the
developments over the last decade or so regarding number one, legal
marijuana, and number two, the increased prevalence of opioid use,
whether it’s legal or otherwise. It’s just harder now
to navigate all of these issues than it used to be.
So, let’s start unpacking some of the particular areas that
often end up forming stumbling blocks when employers are forming
and then ultimately implementing drug testing protocols, and see if
we can maybe clear some of those things up and make things just a
bit easier for all of you. So, one of the hot-button issues with
drug testing and particularly marijuana testing really starts with
testing mechanics because there are different forms, different ways
to test for drugs and alcohol, different testing methodologies.
Those different testing methodologies have detection windows for
various substances that differ. All right. So, hair testing, for
example, has a lengthy look-back window of detection regardless of
the substance being tested for. That is just the nature of hair
testing.
On the flip side, urine and oral fluid tests, for the most part,
have pretty short detection windows of approximately one to three
days, give or take. But notably with regard to marijuana, not only
do hair tests have a longer look-back window, but those urine tests
can actually potentially have a lengthier look-back window, as
well. So, with regard to urine tests for marijuana specifically,
that can potentially look back up to 30 days and possibly even
longer with regard to marijuana detection. Urine testing is by far
and away the most prevalent form of testing that’s used by
employers by a not-even-close margin.
So, this all brings us to what is ultimately one of the biggest
issues with regard to drug testing and certainly one of the issues
that I get the most questions about and we got a lot of questions
about today after our presentation, but that question is how do I
know that this employee who tested positive for marijuana was
actually impaired at work? Because that’s ultimately, at the
end of the day, one of the biggest issues is on-the-job impairment.
That’s what many employers are going to care about. It
depends on the nature of your business, of course, but that is one
of the biggest issues.
So, you may not care that much, for example, depending on the
nature of your business, whether an employee took a gummy over the
weekend or something that causes them to test positive when
they’re pulled for a random test five days later, or
something like that. All right. It may not be something you care
all that much about. So, marijuana, let’s spend a few
minutes. We’re going to hone in on that. Marijuana tests
measure levels of marijuana in the body. All right. That is the
metric that is ultimately tested. Marijuana tests don’t test,
generally speaking, for impairment. That’s not what the
metric is. Now, there are some developments on the testing front
with regard to testing for actual current marijuana
impairment.
For example, I’ll just offer this one up. There’s now a
device on the market, and it’s actually a headset. It’s
pretty cool. You put it on, and it performs a type of ocular or eye
test that detects alcohol and drug, including marijuana impairment
by measuring certain involuntary eye movements. Scientifically
backed, science all supports this. It’s not cheap. I think
the logical argument for a plaintiff’s lawyer to make for a
test like that is that it constitutes an impermissible medical exam
under the ADA, but I do think that there are good defenses to that
argument on the employer side. So, that’s just one
development on the testing front with regard to marijuana.
There are also tests that are on the market or that have been on
the market in the past that can detect more recent usage of
marijuana. Generally speaking, oral fluid tests are going to have a
shorter detection window, which would correlate with more recent
use. So, oral fluid tests, that’s probably the type of tests
that you’re going to want to use in that regard, if
that’s what you want to focus in on. But I want to spend a
couple of minutes now talking about tests that differentiate
specifically between psychoactive THC versus non-psychoactive
cannabis metabolites that might remain in someone’s system
for days or even weeks following marijuana usage. So, California,
as it often is, is on the forefront in this regard.
Many of you may know that California passed a bill back, well, it
went into effect anyway, in January of 2024. It’s Assembly
Bill 2188, AB 2188 as it’s often colloquially referred to.
But we often refer to it as California’s Off-Duty Conduct
Law. Because part of this law, part one prohibits California
employers from taking adverse action against an employee based on
the person’s use of cannabis off the job and away from the
workplace. All right. That’s part one. But the other part,
and this is what I want to focus on, is that it restricts
California employers’ ability to take adverse employment
action based on tests, on drug tests indicating the presence of
those non-psychoactive cannabis metabolites.
So, those substances in a person’s hair or urine or other
bodily fluid that indicate that that person used cannabis at some
point in the past. All right? So, that is what California’s
AB 2188 differentiates between those substances or those
metabolites, differentiates between those in psychoactive THC. It
provides that if a scientifically valid drug screening test shows
the presence of psychoactive THC versus those non-psychoactive
metabolites, the employer may be allowed to deny someone a job or
take some adverse employment action on that basis. So, the test
must focus in on those psychoactive THC metabolites.
The ultimate point now that I’ve laid all of that scientific
mumbo jumbo out is that this new law in California focuses in on
recent usage, which of course correlates more with actual
impairment. I think that’s going to end up being a trend
because what it accomplishes is pretty sensible. Washington state
has already adopted a pretty similar law, and I think there’s
going to be several other states that follow in that regard. Some
other trends we’re seeing on the drug testing, and
particularly the marijuana front, with medical marijuana being
legal in nearly 40 states now and recreational being legal in
nearly 25, we’re seeing more and more employers relying less
and less on pre-employment and random testing for marijuana or just
quitting pre-employment and random testing for marijuana
altogether, unless of course they’re required to do so
because obviously there are employers that have DOT regulated or
other federally regulated employees that they’re still going
to have to test.
But that is one trend that we are seeing. The flip side to that
trend is that we are seeing employers relying more and more on
post-accident and reasonable suspicion testing and then beefing up
their policies and protocols in that regard. Because in spite of
all of this, I don’t want to say bad news, but news that
makes it a little more difficult to comply with the laws on the
drug testing front. In spite of all that, there is no requirement,
keep in mind, that you allow your employees to use or possess
marijuana or be impaired at work. That’s not a requirement,
never going to be a requirement. You can take adverse employment
action for use or possession or impairment on the job.
So, reasonable suspicion, and maybe to a lesser extent,
post-accident testing, it is probably always going to be on the
table regardless of how quickly things are changing on the other
fronts with regard to marijuana. Flipping the focus for a couple of
minutes to prescription drugs and some points on this front that
you’re going to want to consider as you formulate and
implement your drug testing policies and protocols, so point number
one, prescription drug use in and of itself is not a disability
under the ADA. All right.
So, if an employee comes to you and says, for example, “I
need an accommodation because I take Xanax,” that employee is
“not disabled” simply because they take that
medication, and you’re not going to owe that employee any
obligations under the ADA simply because they take that medication.
It’s a bit of a nuanced point, though, because prescription
drugs, of course, are often used to treat conditions that do
qualify as a disability. So, if that same employee came to you and
said, instead, “I need an accommodation related to my Xanax
use that treats my crippling anxiety disorder” or something
to that effect, then you may very well need to go through the ADA
interactive process with that employee.
Just one final point on that front is that prescription drug
addiction may also constitute a disability under the ADA. So, with
regard to prescription drugs and ADA considerations and
obligations, generally speaking, under the ADA, employers may not
ask about an employee’s use of prescription drugs. It’s
just a general rule asking all of your employees about their use of
prescription medication. That’s not going to be considered
job-related and consistent with business necessity for purposes of
the ADA.
However, if prescription medication use may affect an
employee’s ability to perform the essential functions of the
position safely or in an acceptable manner, then requiring the
employee to disclose the use of that medication may indeed be both
job-related and consistent with business necessity. Ultimately, it
all boils down to this for prescription drugs and ADA purposes. The
ADA, generally speaking, is going to require employers to engage in
the interactive process with employees who are taking prescription
medications, and then, if necessary, after engaging in the process,
provide reasonable accommodations. The focus of any interactive
process under this type of circumstance should be on safety, for
starters.
You’re also going to want to consider things like frequency
of use of the medication, duration of impairment under the
medication, and then the nature of the position. Is that employee a
safety-sensitive employee or not, for example? With regard to
prescription drug abuse or really any type of drug or alcohol
abuse, a leave of absence for treatment or some modified work
schedule for counseling or outpatient treatment is the most common
type of accommodation that you’ll see. So, I will flip it
back to you, Brent.
Brent Kettelkamp: Thanks, Christina, for that really helpful
overview and assessment of what employers are going to be looking
at and what are the key hot button topics as we see our drug
testing evolve throughout the country. Then I think the question
now becomes what do we do, and should we test? What I think of an
important consideration is looking at this perspective less from a
legal standpoint and more of a business standpoint, is what do you
want to do? Work backwards from there, and build out a policy and
your processes and your testing framework. Figure out what
you’re going to do first. Do you care about marijuana? If you
don’t, then don’t test for it. In some particular
states, you actually can’t test for marijuana on a
pre-employment basis.
So, if you have states where you cannot test for it, and you have
other states where you can, does it make sense for you to continue
testing for marijuana in those states where it is legal? If it
doesn’t, maybe stop doing it. Obviously, the emphasis is on
impairment. If you’re looking to see and protect against
impairment, maybe it only makes sense for your business to do
reasonable suspicion testing for marijuana in those circumstances.
So, just look back with your businesses, talk to your business
leaders, and really get to the bottom of what do you care about,
and create a process and a policy that allows for you to protect
what you care about. Importantly, some other considerations are
training because the issues that can come up are extensive.
So, to the extent that you’ve made your policy, you’ve
created your policy on what you care about, what’s important
to you, the next step is train your management on the policy,
making sure that the folks that are involved in implementing the
policy and enforcing the policy know specifically what’s
required of them, what’s not required of them, and in
particular, once a test is completed, that they know what those
next steps are in doing it in a consistent matter.
The next piece, and this is also a part of the training, is the
reasonable suspicion checklist or form, make sure that your
teammates that are filling out those forms, first of all, know that
the form exists and know how to fill out the form and doing it in a
way where it is reflecting objective thoughts and observations.
Then, finally, consider who should own the policy and enforcement
of the policy. When you reduce the number of decision makers in the
drug testing framework and the drug testing policy, reducing the
number of decision makers allows for consistency.
So, whatever you do in your drug testing policy, train your
employees, train your management on the policy, train them on what
to do, train your management on how to fill out reasonable
suspicion forms, your checklist, and reduce the number of decision
makers to make sure that your organization will see consistency in
your policies. Now I want to turn then to some final best practices
and solutions to consider. Christina, what are some thoughts you
have on final best practices and solutions for businesses,
considering now that we’ve gone through what your policy
could look like, how you’ve trained your employees? Final
best practices, thoughts?
Christina Mallatt: Sure, I’d be happy to delve into that.
You’ve already touched on some of these points, Brent, but I
will flesh them out a little bit further. I think the first one
that I would make is think of these drug testing issues less from a
legal standpoint, which is counterintuitive for a lawyer to say,
but think of it less from a legal standpoint and from more of a
business standpoint. You mentioned that earlier, but what do you
want to do? What does the business want to do about marijuana, for
example? Start there and then work backwards from that point to
then build out your policy, your processes, your testing framework.
You’ve got to figure out where you’re going first. So,
with regard to marijuana, again, ask yourself, do you care about
marijuana?
If you don’t, stop testing for it. You don’t have to
test for it in most cases. I mean, obviously, there’s
federally regulated positions that you have to test for.
We’ve talked about that earlier. But generally speaking, if
you don’t care about it, if your business doesn’t care
about it, don’t test for it. If you do care, that’s
fine. But then think about how to build out your testing to achieve
the goal that you want to achieve, and think about the who, the
when, and the how of your testing. So, you can ask yourself a
series of questions. Do you want to test everybody for marijuana?
Do you want to test only your safety-sensitive employees? Do you
want to test only your super-duper safety-sensitive employees? Do
you only want to do reasonable suspicion testing?
Do you still want to do pre-employment testing or do you not? Do
you want to do urine testing when you do test? Do you want to do
oral fluid testing with a shorter look-back window? I suppose the
reason I’m walking through all of these hypothetical
questions is to make the point that you have a lot of power as an
employer to control what you do in this regard. The decision-making
is really up to you. That’s a good thing, right? I mean,
that’s a good thing. It’s something that you have a lot
of control over, and that’s great. So, again, sit down with
your stakeholders, sit down with the business folks, HR, legal,
managers, ops, and figure out what you want to do.
Figure out the answer to that question first, take things into
consideration, like your company culture, for example, your safety
context. How many safety-sensitive employees do you have?
What’s the nature of your business itself? What’s your
appetite for risk avoidance on the drug testing front and then on
the safety front? You might want to take into consideration some
recruiting and retention factors because that can be something to
take into account when you’re figuring out how to build out
your policies and what to test for and how to test for it. Then
from there, consider whether your policy is good as it is, or does
it need a revision, or does it need a complete, just chuck the
policy out the window and start from scratch and just rebuild
it?
One other point that I would make as far as a best practice to
consider is that you don’t have to put your entire drug
testing process and protocol in the employee-facing policy itself.
That’s just not necessary. You want to provide enough
information so that your employees are educated on what
they’re going to be tested for, when they’re going to
be tested, testing methodologies, how they’re going to be
tested. You want to provide that, but you don’t have to put
the entire policy and protocol in that employee-facing policy. Like
I said, itself, you can develop an internal playbook of sorts and
some internal documentation for managers and supervisors that
contains the nitty-gritty details in that regard.
Brent Kettelkamp: Christina, one last point that I thought was an excellent one that you made during our live presentation was about job descriptions.
Christina Mallatt: So, you view your job descriptions as part of this reviewing and building out your drug testing policy process. All right. Your safety-sensitive jobs are being classified properly because that is going to be a pretty big factor when it comes to drug testing, right? I mean, you’re always going to be testing your safety-sensitive employees probably more frequently. You may be testing them at pre-employment, whereas you wouldn’t with a non-safety-sensitive employee. So, really make sure that you’re reviewing those descriptions and make sure that they are accurate and up-to-date.
Brent Kettelkamp: Because I suppose if the job description doesn’t accurately reflect that someone is, in fact, safety-sensitive, their lawyer may say, “Well, they’re not safety-sensitive. Look at the job description, right?”
Christina Mallatt: Absolutely. Yeah, that could come back to haunt you at a later date, for sure.
Brent Kettelkamp: Well, that is a wrap from Workplace Strategies on our recap of the nuts and bolts of drug and alcohol testing presentation. Thanks, everyone, for joining.
Christina Mallatt: Thanks for joining.
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