HR Works Podcast: Drug Testing Needs to Evolve

Welcome to the HRWorks podcast, brought to you by HR Daily Advisor. When you're armed with the best practices to engage, develop, and lead your teams, HR just works. Hello, everybody, and welcome back to the HRWorks podcast. I'm your host, Griffin Cobb, content editor for HR Daily Advisor.

And the past decade has seen incredible change when it comes to the use of cannabis. The laws have changed, the culture has changed, but employee drug testing has largely remained the same. Drug tests often fall to the wayside of priorities for HR professionals, but leaving them to become outdated is a straight shot to a logistical and compliance nightmare. So today I'm joined by the wonderful Kate Riley, general manager for recent THC, to discuss how drug testing needs to move into the future.

Kate, an absolute pleasure to have you on. Thanks so much for having me. I'm delighted to be here. Anytime.

Would you care to give a little bit about your background in this profession to our audience? Of course. So I have spent the last five years or so in this space with companies developing drug testing solutions to help employers answer exactly the question that you just described. How should we be testing for THC in this new regulatory environment that we're in?

First, I worked with an oral fluid testing company based out of Canada. And now I'm, as you mentioned, the general manager for recent THC at Minder, working on our portfolio of THC testing solutions for the marketplace. Minder brings decades of experience in substance detection and safety tools for the community and is particularly well versed in the compliance space, delivering alcohol detection solutions for vehicles. An absolute pleasure to have somebody so experienced on talking about this.

Like we talked about, this is something that I think for a lot of HR professionals falls to the wayside a lot in terms of priorities, because there's also not a lot of expertise on the matter, considering how recent a lot of changes are. So to have somebody, a company, be professional and have all of the expertise on it as a resource to go to, I think, is really, really valuable. And as we kind of look at the drug testing landscape, I'm sure a lot of people are kind of unaware of what is and isn't regulatory now and has questions on what they need to update.

In your opinion, what are the biggest concerns with current drug testing practice for both the employer and the employee? Yeah, that's a great question. We get asked this question a lot. As you said, the laws are changing across the country for cannabis as a recreational drug.

In some places, it is still illegal. In some states, it is legal. In some places, medical use is allowed, but not recreational use. And it's really a state by state matrix.

And there is no consistent rule across the country for how employers should be testing their workforce for cannabis anymore. And in fact, there are rules that are being rolled out for how they can't test for cannabis anymore in certain states. And so we get asked a lot by employers, how should I be looking at this, especially if I'm a multi-state employer where I have employees in different places across the country? What are the regulations that I need to comply with?

What are the best ways for me to actually maintain a safe work site? And what's the best way for me to communicate with my employees and set policies for my employees that they can understand and get behind for drug use in the workplace? So what we are seeing is that as cannabis is legalized across the country, the states that are legalizing cannabis recreationally tend to also bring into force rules around how and when employers can test for cannabis in the workplace. We're finding that those rules are starting to lead towards prevention of testing for metabolites or historical use.

And so we see rules like in California where you can't test your employees for previous use that does not intersect with the workday and you can't be testing for metabolites. So that really pushes employers into testing tools that detect Delta 9 active THC and that really try to narrow that window of detection into a test period that would intersect with that employee's shift at work. We're seeing that those laws are varying from state to state, but there's usually some version of a rule around how an employer can test when a state goes to legalize cannabis use in that state.

But what's also interesting is that we are seeing in states where cannabis is becoming legalized recreationally, we're seeing changes in the occurrence of cannabis use at work. And so the Quest Diagnostic Drug Testing Index, which is a great tool for anybody in this space to be looking at, is showing us a clear difference in states that have legal cannabis use recreationally and states that do not. And we're seeing trends increase for cannabis positivity at the workplace. And so this is becoming a higher priority for employers across the board.

From the employee perspective, the questions that we're asking as cannabis is legalized is employees saying, look, I'm allowed to consume cannabis at home when I'm not at work. It's legal in my state now. But if I go to work on Monday morning and I take a drug test, I'll probably test positive on a urine test. And so the big question that's being raised is, is how can I effectively test my or effectively enforce my drug, my drug use policies at work?

And what kind of testing tools can I use to make sure that I'm detecting high risk behavior that could lead to workplace safety issues and and show me that there's drug use in the worksite versus not invading my employees privacy and not penalizing behavior that is otherwise considered legal in that state? yeah absolutely uh wanting to ride that balance uh for sure and again making sure that it's always the juggle of hr professionals to maintain their you know workplace culture maintain their rules while also not completely fringing upon the outside of their uh that right and making sure that their rules are up to date with the regulations that are in place So policies often need to be updated to reflect the current best practices of the tools that are available and the laws that have been passed over time to deal with different circumstances.

Absolutely. So one of the side effects of the complex regulatory landscape that you've highlighted is we're seeing a number of employers decide to just remove cannabis from their testing panel altogether and say, you know what, this is legal in my state now. And we can't figure out how to comply with the new rules. And so we're just not going to test for cannabis anymore.

And that is creating higher risk situations for those employers. And what is what I think needs to be remembered is that just because cannabis is legal and just because the rules around testing for cannabis are changing, it does not eliminate the employer's requirement to ensure a safe work site and to make sure that employees are all complying with the kinds of rules that would be required in order to maintain safety at work. And the two don't have to be mutually exclusive. And that's what we're really trying to communicate to the marketplace is that there are tools that we can, things that we can do, policies we can enact and tools we can use to balance that safety and fairness concern at work.

Absolutely. And that kind of leads me into my next question, which is trying to find that balance. There are a lot of things that HR professionals are simply unaware of. So what are some outdated things about drug testing you find that employers don't know about?

Is it just the methods? Is it some of the background and culture behind it? A lot of things, actually. So I can go through a few.

The first thing that I would say is the most outdated view is that all drugs are equal at work. They're not. And you will find that cannabis is a much greater risk than sometimes other drugs at work, not only, but primarily because it is the most commonly consumed substance and the one that is most commonly appearing in drug tests. And so in the Quest Diagnostic Drug Testing Index, for example, you'll see that over 10% of oral fluid drug tests performed across the country were positive for cannabis.

And the next most common drug was amphetamine at 1.2%. So we're seeing nearly 10 times as much cannabis at work as any other drug. And there's a misconception that cannabis is less impairing than other substances.

And that's really a public perception of risk that is carrying over into behaviors that lead people to bring that behavior into the workplace. And so I think there's this misconception that all drugs are creating an equal problem in the workplace. And so I think there needs to be a unique attention paid to cannabis in a workplace policy. The second misconception, I think, to your point about tools, is that urine can do it all, that urine testing is all that I need in order to be able to have an effective drug testing policy.

Urine testing has great advantages for workplace drug testing for many, many applications. But when it comes to cannabis, it has a lot of limitations and is is something that will not be permissible in states that are not permitting testing for metabolites. The challenge with urine testing as well for cannabis is that it gives a result to an employer that says that the person being tested has been exposed to cannabis at some point in the last up to three weeks, four weeks. that doesn't really give them a clear picture of their true safety risk on the worksite that day.

They don't know whether that person is in fact a safety risk to other people or is perhaps just demonstrating trace residual amounts of a substance in their body. And so it doesn't really help them make a decision that changes the safety profile in the workplace. The next outdated concept is really a one size fits all policy. Oftentimes you'll find the most success in drug testing policies if they're updated to reflect different role risk levels and different state behavior practices.

And so when I talk to employers, I like to emphasize that drug testing itself, picking a tool for drug testing is one piece of what should be a comprehensive drug use policy at work. And so drug testing is not a standalone one size fits all solution. But instead, looking at the environment, looking at the roles and the risk levels that come with those roles in those environments, an effective drug use policy needs to be adapted to different environments to use different tools and different strategies for proper and effective implementation.

The next one that I think is a bit outdated is the concept of employees not really having a say. And so I think employers should be encouraged to consider the impact of their drug use policies on their employee base and what impact that has across like the safety of their work site and also their operational effectiveness. And so communication with employees is really important. Being able to articulate why you have a drug testing policy in place and what's in it and how it will be enforced and an explanation of the tools being used and why they were chosen and how they're going to be deployed is really important for an effective implementation of a drug testing policy.

And then there's one that I, there's a, there's a, I would say not an outdated view, but a new perspective that I think is a, is perhaps not the most effective. And that is what I mentioned before, the concept of seeing changes on the landscape relating to cannabis and interpreting those as meaning we'll just remove cannabis from our testing panel. That to me, I think is the highest risk move of all of them, given that cannabis is the most commonly positive, like is the most common drug consumed at work that is appearing on our drug tests.

And so we can't just bury our heads in the sand and say, okay, well, I guess I won't look. It's there. It is happening at work. And so making sure that you have the most effective policies around addressing that and how to maintain a safe work site in light of that is really important Absolutely And I think that such a good point about you know the culture changing and you know part of the outdated perspective of this is simply not wanting to have a conversation about it at all You know you have your drug tests and that is you know one size fits all You test negative or you test positive.

And then there's one reaction based on one or the other. And I think you bring up a really good point about involving the employee as well and having open discussions about why these policies are updating, why they're changing, why actions are being taken, and what the safety implications of these are. Absolutely. I think these are really, really good points.

And, you know, our audience now is more aware of what actions they, you know, what they want to move towards or what they want to move away from with their current drug testing model. If you could give one to two pieces of advice about what needs to change about current drug testing in the workforce, where should HR professionals be working towards in this new cannabis environment? Yeah, of course. I think the big push should be towards recent use cannabis testing.

So we need to move away from the metabolite testing that just tells us about exposure over a long period of time and really start to focus policies towards more recent use testing that narrows in on a window of detection that can identify the risk period that is most relevant to that employer. And there are different tools on the market that can offer different detection windows. For example, oral fluid testing, which is saliva tests, if there's a cutoff of roughly 10 nanograms per milliliter, for example, on a test for saliva, that gives you about an 11 or 12 hour detection window.

So that period, and I can talk about impairment windows in just a second, that period lines up pretty fully over the full span of acute impairment that you'd expect from both smoked and edible cannabis. So picking a test window that lines up with that acute impairment window, if that's the most appropriate for the role type and environment that you're in, is really effective. Then there's breath testing solutions that bring an even narrower detection window that focus really on that up to three hours since consuming cannabis.

And that's really effective at identifying the acute impairment that you'd see from smoking cannabis, for example. And that tool is very effective if the type of drug testing policy that you're looking to enforce is that there shall not be any use of cannabis within the workday or shortly before the workday, because that would identify whether somebody has consumed that morning before coming into work or even on shift. And so that really helps to narrow down that window of detection to a particular policy objective.

As I said before, there are different roles with different risk levels. And so an employer's policy for how long they want to ensure that their employees have been withdrawn from cannabis should adjust based on the role type and risk level. And so for some rules, Um, a longer multi-week withdrawal period may be what is required because it's so high risk. And that is, and there's a justifiable reason that the employer would say, we need you to be, we need to know that you've not consumed cannabis for any period in this three weeks so that we know that you're not going to have any residual effects from it.

Um, or it could say, look, 24 hours means that we cover acute impairment plus any residual impairment that we would expect to see from cannabis consumption. So 24 hours, it's acceptable. Or we would say 12 because that's acute impairment or three because that's workday use. And so depending on your priorities, role type and risk level, first thing to do is pick the withdrawal period that you really want to focus on and then match the testing tool to that withdrawal period and to that period of detection that you're aiming for.

One thing that I have found many people haven't thought about and that is helpful when talking to employers, but also as employers talk to their employees, is why we have to have why we expect a longer window of impairment for cannabis than, say, for alcohol or why we would be looking to detect recent use rather than looking for impairment itself. And so that really comes back to a question of biology. How does cannabis work in your body versus other things like alcohol that we're so familiar with testing for, right?

I'll start with windows of detection because I touched on that before. And I'll tell you what we understand to be true about impairment timelines for different consumption types of cannabis. And then I'll take that to why we look for recent use detection as opposed to a single number that would indicate impairment or no impairment. so when someone the studies have shown many studies have been done on this um and what we're starting to see is that if someone smokes cannabis a moderate user not a not a chronic user but a moderate infrequent user smokes a single uh joint a single cannabis cigarette they are typically impaired for between four and five hours in an acute impairment way and we see that through driving simulator studies so they're driving uh performance on a simulator returns back to baseline at roughly four to five hours across the study.

And there are outliers in either way, but that's the typical norm. And then when we see cannabis consumed as an edible, that acute impairment window where that sense of high and true detection of performance ability, that lasts closer to around 11 hours. And so we see edible cannabis creating acute impairments for up to 11 hours and acute impairment from smoked cannabis going from four to five hours. So we use that as our high risk windows.

When we then move to detecting cannabis, we are looking to detect THC within a certain period of time that is associated with the testing type. And then does that test window intersect with periods of high risk for impairment? And so, as I said, oral fluid with a 10 nanogram cutoff is generally understood to give an 11 to 12 hour detection window. So they would have consumed within 11 to 12 hours.

That means if they're positive on that test, it's likely that their consumption is in a higher risk window for impairment You cannot prove impairment It does not mean that person impaired but it means that that consumption is a higher risk of impairment because of the timeframe Same thing for breath that gives you roughly three hours And so that that tells you that you in the high risk acute impairment window, especially for smoked cannabis. We look at it that way because it is a fat soluble drug.

And so alcohol is water soluble and it appears in similar concentrations in different bodies. And so if the concentration and you have a certain concentration in your blood, you'll get a fairly close correlation in your breath, which tells you pretty closely whether that person is impaired or not. So that's why we have cutoffs like the 0.08 legal limit for alcohol.

And it's fairly easy to determine an impairment level by taking a breath alcohol test. Drug. Cannabis behaves very differently in the body. Cannabis is fat soluble.

And one of the fattiest parts of your body is your brain. So as Delta 9 THC is circulating in your body, it is being pulled out of solution from your blood, which is an aqueous solution, and it's dissolving into the fatty tissues of your body, and it's accumulating in your brain. And so we might see the blood plasma levels drop, but the brain levels are still increasing. And so we can't necessarily correlate perfectly the blood level to an impairment level.

And that means that we aren't going to get a perfect, like this amount of THC in somebody's oral fluid or bladder means that they are or are not impaired. But what we can start to narrow down is given the type of test that we're using, we won't pick it up if it has been more than 11 hours or more than 12 hours above a certain concentration. So for oral fluid, you will get studies have shown that they have about 11 to 12 hour detection window at a 10 nanogram cutoff. So a person could be much higher or pretty close to 10, and that could have fluctuated in between.

But if you have that detection level, then you know you're picking up a behavior that is correlated to a higher risk for impairment. It's not an impairment test. And that's why I say these are not standalone solutions. These are a data point that you would then use to say, I'm now seeing also signs of impairment or risk of impairment.

And our policy is that we wouldn't have employees consuming cannabis in a way that would create a higher risk of impairment. And so you use this as a policy enforcement mechanism and a policy explanation is needed to employees for them to understand why the drug policy is set the way it is and what will happen with positive test results going forward. I think that's such a fascinating look into the actual science behind all of this testing and use that a lot of people go unaware of.

And I think that is a deep understanding of the actual chemical effect of these substances and of the technology behind the testing is incredibly informative and helps a lot of the communication we talked about. That is so important for when implementing these policies. And so you covered most of the question I had about technology. I want to move on to one of our last questions, which is, you know, people have, you know, they know they want to update their drug policy.

They have the why of it. They have the information and, you know, the explanation, their plan to communicate. what are some good resources for those who want to start updating their drug testing? Great question.

First and foremost, I love to talk to anybody who wants to learn more about this space. So I would invite anyone listening who wants to learn more to reach out and connect and be happy to help you get the resources that you need and to talk more about this subject. They can also check out recentthc.com.

We publish the latest and greatest information as we get it, And we are going to be launching a blog in the fall to keep to keep HR professionals up to date on what's happening with the regulations, what's happening with the technology and best practices for drug policies, drug testing policies. The other place that we provide some information that might be most useful to employees would be at DUI.org. It's a it's a resource that we typically maintain primarily for alcohol, but we also publish quite a bit of cannabis regulatory and cannabis compliance information there as well.

And then another great resource that I speak very highly of is the industry association, the National Drug and Alcohol Screening Association called INDASA. And they have a great collection of experts in this field, consultants, vendors, HR professionals. They have great events and lots of information to make sure that everybody has the best practices at their fingertips. hips.

Thank you so much for that list. I'm sure we will link everything so that everybody has an easy way to check it out. Any more final thoughts from you before we wrap up for today? And no, I think this is a really important topic.

It's a very nascent industry and it's something that we're hearing a lot from employers about. So I'm really glad that you're having this conversation and thank you so much for inviting me to be a part of it. Please reach out if you have any questions or if any of your listeners want to learn more. Anytime, Kate, an absolute pleasure to have you on today.

Thank you so much for talking with us about all of this today. It's, again, it's something very nascent that has been, you know, a prevalent point in a lot of businesses, but not one of conversation for so long. And I think opening the floor to that is very important. And I think a lot of people are going to find this especially informative and action inducing.

Fantastic. My pleasure. Thank you all so much for watching. For new episodes of the HRWorks podcast, check back on Tuesdays, 930 a.

m. Eastern Time for more conversations with the leading minds in HR. You can tune in wherever you find podcasts or watch our video version at hrdailyadvisor.hci.

org slash podcast. Have a great day.