Wall Street Journal article highlights growing positive drug tests as a challenge for employers

Today’s Wall Street Journal ran an interesting article that highlights the growing challenge employers face trying to hire drug-free in light of a 2-decade high surge in positive drug test results in 2021.

Of the more than six million general workforce urine tests that Quest Diagnostics Inc., one of the country’s largest drug-testing laboratories, screened for marijuana last year, 3.9% came back positive, an increase of more than 8% from 2020, according to Quest’s annual drug-testing index.

That figure is up 50% since 2017. Since then, the number of states that legalized marijuana for recreational use grew to 18 from eight, plus the District of Columbia.

Faced with general hiring pressure, this has, according to the Wall Street Journal, caused an increasing number of employers to begin to permit carveouts for positives at least related to marijuana use in states where permitted, with many such employers opting not to even test for THC.

The percentage of specimens tested for THC declined 6.7% nationwide in 2021 from 2020, while that figure fell by 10.3% in states where recreational marijuana is legal, according to Quest’s data.

“We certainly heard from some of our employer customers that they were having difficulty finding qualified workers to pass the drug test,” Dr. Sample said of pre-employment tests for THC, especially in states where use of the drug is legal.

Overall, the proportion of U.S. workers who tested positive for the various drugs Quest screened for in 2021 rose to 4.6%, the highest level since 2001, according to Quest, which analyzed nearly nine million overall urine tests last year on behalf of employers.

That percentage is more than 31% higher than the low of 3.5% a decade ago, in the early days of a resurgent heroin epidemic in the U.S.

Video clip of Amazon union-awareness training leaked

A recent New York Times’s article about Amazon’s union-awareness training included a link to a video clip of a short two minute twenty second sample of some of Amazon’s training. HR professionals, individuals and their counsel who have not observed this kind of training might be interested in watching it. Please remember all such training carries legal (and HR) risks and should be customized to particular situations. This note is not espousing such training or taking any position with regard to Amazon’s training in particular or any labor issues involving Amazon or any other company.

CDLE publishes searchable index of its citations and appeals

HR professionals and employment lawyers will have noticed that the CDLE has become increasingly active in Colorado employment law issues in recent years. Are you curious what the agency is actually doing as it enforces this crop of Colorado laws? The CDLE is helpfully publishing a searchable index of its citations and appeals.

Available keyword searches include the following:

Advances Business Closure Division Authority Final Wages Pay Periods Retaliation – PHEW Tip Posting Requirement
Agreed Wage/Rate Calculations of Wages/Hours Division Notices/Filings Fine Pay Statements Retaliation – Wages Tip Sharing / Notice Requirement
Alleged Waiver Commissions Draws Handbooks/Manuals Penalties Retaliation Only Tips/Gratuities
Apparent Authority Compensable Time Employee/Contractor Joint Employment Physical Disability Sub-minimum Wage Settlement Vacation Pay / PTO
Bankruptcy Compliance Order Employee/Volunteer Local Minimum Wage Records of Time Worked Sick Pay – 2020 Willful
Benefits COMPS EAP Duties Test Employer Coverage Meal Break/Meal Periods Reduction in Pay Sick Pay – After 2020
Bonuses COMPS Rest Periods Deductions Minimum Wage Reprisal Staffing/Temp Agencies
Bounced Check COMPS Tipped MW 80/20 application Employer Individual Liability Notice of Rights & Posters Retaliation – COMPS Statutory Interpretation
Breaks/Rest Periods Contract Equal Pay – Transparency Overtime Retaliation – HFWA Termination
Burden of Proof Direct Investigation Exemptions Paid Time Off (PTO) Retaliation – Other Third-Party Payments

An example of the kind of information that might be of interest to employers is this recent Notice of Fine For Non-Compliance With Division Orders And Order To Respond issued to one employer apparently based on the CDLE’s own review of the employer’s public job posting, in light of recent Colorado job-posting transparency requirements. There the CDLE discusses its view of specific posting requirements and the proper level of related fines.

The CDLE deserves credit for making this index available and searchable. Employers, individuals and their counsel will benefit from being able to search and find how the CDLE is applying the many laws it now has jurisdiction to enforce.

CDLE publishes INFO 14 with guidance regarding Colorado’s requirement for payout of vacation upon separation

The CDLE has published INFO 14 explaining Colorado’s legal requirements for payout of vacation upon separation from employment. The INFO includes a number of examples illustrating various scenarios.

Honored to be selected for inclusion in Colorado Super Lawyers!

Honored to be selected for inclusion in Colorado Super Lawyers!