Workplace Strategies Watercooler 2025: The Nuts and Bolts of Drug and Alcohol Testing

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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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