U.S. General Workforce Drug Positivity hits 16-Year High in 2019

Quest Diagnostics—a trusted A-Check drug screening partner and leading provider of diagnostic services—recently released their Drug Testing Index™ analysis of more than nine million workplace drug test results. According to their findings, the rate of workforce drug positivity hit a 16-year high in 2019. For example, positivity rates in the combined U.S. workforce increased in urine drug tests, climbing to 4.5%, the highest level since 2003—and more than 28% percent higher than the thirty-year low of 3.5% recorded between 2010 and 2012.

Here are a few key index findings from Quest:

  • Marijuana positivity continues to top the list of most commonly detected substances across all U.S. workforce categories, reaching 3.1% in 2019. This of course is led by positivity in recreational use states. And we hear you . . . it’s hard enough keeping track of evolving legalization legislation. Here’s a website with comprehensive information that may be a good resource in addition to our own compliance updates each month.
  • Specific regions of the United States, particularly the West and Midwest, experienced increases in positivity for cocaine and methamphetamine in 2019. Positivity increased to as high as 0.28% in these areas. 
  • Methamphetamine positivity continues to increase across multiple specimen types. General U.S. workforce categories reached positivity a positivity rate of 0.19% in 2019, when analyzing results from urine, hair, and oral fluid testing.
  • When looking across classifications based on the North American Industry Classification System (NAICS), the Retail Trade category has been identified by Quest as holding the top spot for industry-specific positivity since 2015.
  • And, since 2015, the post-accident positivity rate has increased each year in the general U.S. workforce, reaching 9.1% in 2019.
  • More Quest insight can be found online within their Drug Testing Index.

Will COVID-19 prove to further these trends?

As Quest Diagnostics reports, even prior to COVID-19, workplace drug positivity rates were trending in the wrong direction. Now, with many Americans under higher stress levels as they continue to juggle remote work schedules, childcare and homeschool responsibilities, and even frustration from ongoing social isolation, it stands to reason that there may have been negative impact on general health and well-being during these recent months.

This combination of external forces can very easily lead to worsening heath issues and the opportunity to perhaps abuse alcohol or drugs—even among those who would not normally be inclined to do so. It’s not simply an issue of those at risk relapsing into prior addictive behavior.

Let’s work together for the continued safety of your workplace

Based on the potential for abuse due to COVID-19 related anxiety and strain, it is critical to continue your focus on workplace safety, as well as all employee health concerns.

Your company may be operating with a remote workforce, and you may be in the fortunate position to welcome new employees to the team over the coming weeks and months. Screening employees for substance abuse before they begin working for you—or if you have begun to see sharp declines in remote productivity among current employees—can greatly help ensure you’re doing all you can to keep a safe workplace and healthy, productive team members.

We welcome the opportunity to discuss your options, what you currently might have in place, or to help you build an effective, compliant drug screening program for your company.


Compliance Clips for September 2020


FCRA Class Action Activity
With nearly 5,000 FCRA cases filed in 2019, it’s no wonder everyone at A-Check Global is so committed to compliance. Case law decisions surrounding the Fair Credit Reporting Act (FCRA) continue to spotlight the critical need for compliance in background screening. Let’s use ongoing class action suits as an opportunity to see activity trends and best practice suggestions that can help your company remain compliant.


A Further Extension: Form I-9 and Requirements in Light of COVID-19
An additional update is available in light of ongoing COVID-19 efforts. The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes.
UPDATE: Because of ongoing COVID-19 precautions, it has been announced that remote I-9 document review has been extended for another 30 days; the expiration date for these accommodations is now September 19, 2020.
The government has suspended the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.

I-9 Compliance Advice for Employers
And while we’re on the subject of I-9, we think there’s always time for a useful Top 10 list. Here’s a quick look at best practices for how to stay compliant with I-9 regulations.


Marijuana Legalization in November Elections
Along with all the other upcoming election activity, here’s a quick read on states voting on marijuana legalization in November: New Jersey, Mississippi, and South Dakota. Additional states—Arizona, Montana, Nebraska, and Oklahoma—are all working toward ballot measures for the upcoming November election.

New York
New York continues to lead the way with employee-friendly laws, regulations, and court rulings, including their approach to marijuana in the workplace. Employers should proceed with caution when terminating an employee who fails a drug test for marijuana. A New York employer was recently sued for discharging an employee for a positive marijuana test. They were sued for disability discrimination based on the employee disability and failure to accommodate a disability.

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.


Boston University
A new player in the Ban-the-Box movement: Boston University is hoping to diversify its applicant pool by no longer requiring disclosure of criminal history on grad school applications. Recent research has highlighted that knowing applicant criminal history doesn’t help predict or reduce crime on campuses, and additionally, can have the negative effect of discrimination against people with criminal records.

Montgomery County, MD
A new bill is being introduced in Montgomery County, MD, to expand the scope of a Ban the Box law already in place, and would prohibit criminal background checks on job applicants until after a conditional job offer has been made. If passed, it would also apply to businesses with fewer than 15 employees. Further discussion planned for September 15.

Pennsylvania’s Senate Bill 637 was recently signed, removing some job licensing barriers to Pennsylvania workers with a criminal record. It is reported that one in five Pennsylvanians needs an occupational license to work. Boards and commissions are now not allowed to deny someone employment based on their criminal history unless their prior offenses are related to that particular line of work. Additionally, if boards and commissions do have stipulations about granting a job license to someone based on certain prior criminal offenses, that information will have to be publically available. However, sexual offenders will still not be permitted to work as healthcare providers.

FDIC Restrictions Loosened
The FDIC has loosened a number of restrictions that previously prohibited the hiring of bank personnel with criminal histories. The Federal Deposit Insurance Corporation (FDIC) published a final rule regarding Section 19 of the Federal Deposit Insurance Act, which restricts hiring at FDIC-insured depository institutions. Changes include the narrowing scope of crimes subject to Section 19 and the circumstances under which the FDIC’s written consent is required for a financial institution to make a hiring decision. This will allow more applicants to obtain work at FDIC member banks without having to go through the Section 19 application process.


Starting September 1, 2020, Philadelphia employers will no longer be able to ask job applicants about their salary history, or require job applicants to disclose their salary history during the application process. Applicants may choose to disclose their wage history voluntarily, but an employer cannot use that information in setting initial wages. Likewise, Philadelphia employers may not retaliate against applicants who refuse to disclose their wage history.


Helpful Compliance Guidance for End Users of Consumer Reports

You may already know that the federal Fair Credit Reporting Act (FCRA) is the primary legislation regulating the procurement and use of a consumer report (a background screening report from A-Check Global, for example). In fact, A-Check is required to distribute a simplified document—Notice to Users of Consumer Reports: Obligations of Users Under the FCRA—that illustrates End User requirements.

Adding even more complexity to compliance focus—regulatory compliance for domestic consumer reporting also includes state and jurisdiction consumer reporting laws with additional procedures and disclosures.

Sound like a lot to keep up with? It is, and that’s why we’re your partner in the process.

This topic can become very confusing, very quickly. Regulatory compliance can be a lot for employers to digest while also depending on background screening reports to make ongoing hiring decisions. While many organizations may believe the background check company is solely responsible for the entire scope of every background screen, the reality is it’s a shared responsibility between those requesting a consumer report (the End User) and the company compiling the consumer report (A Consumer Reporting Agency like A-Check).

Your responsibilities as an End User:

It is recommended that your organization develop a background screening program and policy to ensure you’ve got a consistent process in place that can be regularly audited and adjusted if necessary. What’s more, this comprehensive documentation will go a long way in providing a defense should you experience a legal complaint from an applicant.

We welcome the opportunity to answer any questions you may have about your own background screening program, but in the meantime, A-Check has developed the following checklist to help you quickly gauge your organization’s current level of regulatory compliance for the end use of consumer reports in the hiring process:

Ensure that your teams understands the permissible purpose for obtaining a consumer report and that you have certified with your Consumer Reporting Agency (A-Check, for example) that you’ll comply with the federal Fair Credit Reporting Act and all other legislation regulating the use of consumer reports.

Identify and carefully construct each of the required Disclosures for your process. Consider federal and state law, in addition to including all necessary language based on the type of information you include in the consumer report used for screening job applicants. For example:
– Consumer Report Disclosure
– Investigative Consumer Reporting Disclosure
– California Investigative Consumer Report Disclosure & check box requirement
– Credit Report Disclosure

Craft a compliance Authorization form for signature. For example:
– Consumer Report Authorization that states “I authorize” the background check
– State required notices for Minnesota, New York, Oklahoma, Washington & check box requirements
– Personal Identifying Information form if applicable
– FCRA Summary of Rights
– If applicable, a compliant e-signature process

Standardize evaluation criteria based upon the characteristics and requirements of the job and not based on the characteristics of what is found in a consumer report.

A decision to hire is easy—simply onboard your applicant. However, the adverse decision not to hire based on the contents of a consumer report must be executed flawlessly each time a candidate is denied a job, including A) Pre-adverse—a dispute waiting period of 5 days, and B) Adverse communication. It is important to follow the FCRA process and applicable legislation like Ban the Box, etc. For example:
– FCRA: Pre-adverse Communication, EEOC form, copy of the report, and Summary of Rights
– Pre-adverse Ban the Box requirements including forms in Los Angeles and New York City
– Final Adverse Communication with state required notices for New Jersey, New York, & Washington
– Final Adverse Ban the Box requirements including forms in Los Angeles and New York City

Have questions about your current background screening program? We welcome your call, and we’re happy to help.


Compliance Clips for May 2020


9th Circuit Case Addresses FCRA, Background Screening, and Rules on “Standalone” Disclosure
As class action lawsuits continue to gain momentum, employers should continue to be very aware of compliance surrounding Disclosure and Authorization forms related to background screening. With that said, on April 24, 2020, the 9th Circuit upheld the dismissal of a case arguing that an employer violates the FCRA (a) by providing an FCRA disclosure simultaneously with other employment materials, and (b) by failing to place a FCRA authorization on a standalone document. In this latest decision, the court held that the employer’s disclosure document satisfied the “standalone” requirement because that single-page document included nothing beyond disclosing an intent to obtain a background report, the employer’s logo, and a signature block. Moving forward, please consult with your legal resources to determine compliance of your Disclosure and Authorization forms.

Compliance with Form I-9 and E-Verify Requirements in Light of COVID-19
While we shared this information previously, it bears repeating in light of ongoing COVID-19 efforts. The in-person requirement for the Form I-9 is temporarily suspended if your company is closed or taking other precautions due to COVID-19. The general rule is that an employer must undertake a physical inspection of the document(s) presented by the employee for section 2 purposes. However, the government is suspending the in-person and physical inspection of the document(s) presented by the employee when completing the Form I-9. During this time, an employer can view the document(s) presented by the employee via Zoom or Skype, for example.


Florida Medical Marijuana Users may Soon Become Protected Class
Both chambers of the Florida Legislature are currently considering proposed bills aimed at extending certain protections to Florida employees who are legal medical marijuana users — H.B. 595 and S.B. 962, which are collectively entitled the Medical Marijuana Employee Protection Act. Both bills, if passed, would extend to both private- and public-sector employees (with the exception of safety sensitive positions) and employment applicants in Florida. If passed, one of the new rights these bills would provide to employees is the right to sue an employer if the employer takes an adverse employment action due to an employee’s status as a legal medical marijuana user.

Utah State Legislature Clarifies: Private Employers Not Required to Accommodate Use of Medical Cannabis
The Utah State Legislature enacted Senate Bill 121, which amends and clarifies various provisions of Utah’s medical cannabis laws, including a pronouncement that private employers are not required to accommodate the use of medical cannabis. The key takeaway: private employers in Utah now definitively know that they are under no legal obligation to accommodate employee use of medical cannabis, either at the workplace or away from work. Employers that do not intend to accommodate the use of medical marijuana are advised to clearly communicate their policies so employees are aware that the use of marijuana, medical or otherwise, violates company policy.

New Jersey: Failed Drug Test not Enough to Dismiss Claim of Disability Discrimination
In a recent employee-friendly trend, various courts have found that employers discriminate against certified medical marijuana users when adverse employment actions are taken against them solely because of failed drug tests. This certainly means employers should consider assessing their current policies and procedures.

AS A REMINDER: At A-Check, we’re happy to help implement a drug screening program that meets your evolving needs—or make adjustments to the program you’re already running with us. Just give us a call at 877-345-2021 and ask to speak with someone on your Client Relations team.


Lawsuit against Waterloo’s ‘Ban the Box’ is dismissed
The City of Waterloo, Iowa announced that the lawsuit filed against the Fair Chance Initiative (Ban the Box) has been dismissed. Under the city ordinance, scheduled to take effect on July 1, 2020, employers will no longer be allowed to have a criminal history box on applications, and cannot ask about criminal history during the hiring process. However, employers can still do background checks on applicants.


States and localities that have outlawed pay history questions
State and local governments are increasingly adopting laws and regulations that prohibit employers from requesting salary history information from job applicants. In fact, there currently are 18 state-wide salary bans in place, and another 21 cities/jurisdictions who have salary history ban legislation. As a reminder, we’re reposting a great site that lists them all, including recent additions and upcoming bans:
Colorado: January 1, 2021
St. Louis, Missouri: March, 2020
Cincinnati, Ohio: March, 2020 (estimated)
Toledo, Ohio: June, 2020

Questions? We’re here to help!


The New Normal: Hiring and Onboarding Employees Remotely During COVID-19

For organizations worldwide, the response to the COVID-19 pandemic has been a swift shift to a new normal. In part, that likely means keeping business as usual by transitioning to hiring and onboarding employees remotely. The fundamentals of hiring remain the same, and the goal is always to make great hires. That said, there’s never been a better time to take a look at your procedures and ensure you’re discovering good people, making them feel like they’re a part of your company’s big picture, and giving them the tools to succeed—regardless of whether they ultimately work inside or outside of your office.

Be creative in discovering your next great candidate

As a result of COVID-19, there are a LOT of candidates looking for their next opportunity to contribute. Your job is to find an efficient way to sort through a growing stack of applications and find the ones you’ll likely interview.

First step? Consider finding a free moment to take a look at your application. Are you simply asking “yes/no” questions, or are you also asking deeper, open-ended questions—questions that allow your potential candidates to really paint a complete picture of who they are, where they’ve been, and most importantly, what they’re capable of achieving at your company? Perhaps go one step further and ask what interests them about your company, the open position, and more specifically, what they might accomplish once hired. Additional information can help considerably as you decide who to move forward in your process.

Be transparent during trying times

Once it’s time to reach out for introductions, remember that these are strange days. Chances are really good that you’re speaking with candidates who are feeling uncertain about their professional future. You may speak to a recent graduate who is unsure how to land a first opportunity during COVID-19, or you may be connecting with candidates who have lost long-standing jobs.

Now is the time to be transparent. Be very honest and open with your candidates about your company’s efforts to protect both the business and the safety of the employees. Share with them the realistic timeline for remotely hiring and onboarding new employees. Clear and authentic communication can put candidates at ease during this time, and even give them greater confidence in your company.

Take advantage of tech

It’s no secret that the video format is taking over. From virtual proms, to family gatherings and holidays, we are growing more comfortable communicating “on-screen.” As you move forward with interviews, video chat apps are a good alternative to conducting phone interviews. Honestly, it’s not as easy to pick up on non-verbal cues when you’re not sitting in front of a candidate. But through video, you can get a general sense for how they present themselves, and how they show enthusiasm for you, your company, and the potential role.

Collaborate with IT for success

If you aren’t best friends with your IT team, there’s never been a better time to introduce yourself. Hiring remotely can present a long list of challenges . . . many of them technical. There’s nothing more off-putting than stalling an interview or training session because your microphone isn’t working.

Work closely with your IT team to evaluate the tools and resources you have in place, and where you can quickly and effectively improve things to benefit your candidate’s experience. And remember, the onboarding experience is more than the video interview. Be sure to collaborate with IT to ensure that your training program and other onboarding tasks can also successfully be administered remotely.

Get your candidate’s team involved

Whether your candidate will work remotely or in your offices, it’s important to immediately provide a sense of teamwork. Even when hiring remotely, there are opportunities to find candidates who will thrive when contributing to a team atmosphere.

Whenever possible, include your candidate’s future teammates in the interview process. With the success of video chat software, this is now more possible than ever before. It’s not much of an issue to set up conversations between people in multiple locations and across different time zones. No need to get everyone traveling to numerous office interviews. Even better, it allows candidates to quickly meet and get to know team members they will be working with before accepting an offer.

Introduce them to the big picture and make sure they’re interested

It probably goes without saying, but we’ll say it anyway. Since your candidates are getting introduced to you and your company without visiting your offices, it’s important to spend a little time with the big picture. Open a dialogue to find out just how truly interested in your company the candidate is, and if they seem driven to contribute to what your company is accomplishing. Let them know what success looks like for your open position, and what will be asked of them to achieve that success. With smart questions, you’ll be well on your way to finding the right person for the job.

Show flexibility when onboarding

As you’re making great hires during COVID-19, you’re probably noticing that the onboarding process requires a little flexibility. The first days and weeks are critical as you introduce your employees to their teams, company culture, product information, benefits, etc. During this time, video conferencing can play an immense role in the process. Now is also a good time to take a look at the effectiveness of welcome packages and other introductory communication you present.

During this time, you may not have opportunity to meet face to face with your new employees, so it’s critical that you go the extra mile to make sure your they feel as connected to their new company as possible.