Is your company a drug-free workplace? Have you implemented a policy not only stating you’re a drug-free workplace but also established a mechanism for conducting drug testing when you suspect someone has come to work under the influence?
Substance abuse has become prevalent in our society and this is greatly affecting U.S. workplaces. According to the National Institute on Drug Abuse, substance abuse costs our Nation more than $700 billion annually in costs related to crime, lost work productivity and health care. According to a recent survey, almost 68 million adult users of illicit drugs are employed…as are many heavy or binge drinkers.
So what is your company doing to control the affects of substance abuse in your workplace? Many employers have adopted Drug-Free Workplace policies that include drug-testing. The Drug-Free Workplace Act of 1988 requires some federal contractors/subcontractors and all federal grantees to agree they will provide a drug-free workplace as a condition of receiving a contract or grant from a federal agency. While this law doesn’t require drug testing, many employers have adopted the practice of conducting drug testing, including new hire, random, and reasonable suspicion testing.
Many states have adopted laws that provide discounts on workers’ compensation premiums to those employers who adopt specific drug-testing programs that are prescribed in the law. For example, Florida provides employers with a 5% discount if they adopt drug testing policies that follow the required guidelines.
Additionally, some federal agencies have adopted regulations for specific industries/occupations. For example, the Federal Aviation Administration has adopted drug testing rules for pilots and the Department of Transportation (DOT) and Federal Motor Carrier Safety Administration (FMCSA) have adopted drug testing rules for certain drivers. The Substance Abuse and Mental Health Services Administration (SAMHSA) provides guidances to employers on how to implement drug-free workplaces that will comply with these federal laws.
As you begin the process of implementing a drug-free workplace, here are several types of drug tests to consider. Some of these may be required by law (such as random testing of drivers of commercial trucks or buses) and some may be required in order for the organization to receive discounts on their workers’ compensation premiums. These tests include:
- Pre-employment – As it sounds, this type of test is conducted on applicants typically after a job offer has been extended but before they actually begin work. This drug test typically screens for illegal drugs such as cocaine, marijuana, heroin, etc.
- Reasonable Suspicion – This type of drug test is conducted when the employer reasonably believes the individual is using or has recently used drugs in violation of the company’s policy. The decision to test will usually be based upon objective, articulable facts and reasonable conclusions based on:
- Observable phenomena while at work, such as direct observation of drug use or of the physical symptoms or manifestations of being under the influence of a drug.
- Abnormal conduct or erratic behavior while at work or a significant deterioration in work performance.
- A report of drug use, provided by a reliable and credible source.
- Evidence that an individual has tampered with a drug test during his or her employment with the Company.
- Information that an employee has caused, contributed to, or been involved in an accident while at work.
- Evidence that an employee has used, possessed, sold, solicited, or transferred drugs while working or while on Company premises or while operating Company vehicles, machinery or equipment.
- Routine Fitness-for-Duty Drug Testing – The company may reasonably request that an employee submit to a drug test if it is included as part of a regularly scheduled employee “fitness for duty” medical exam.
- Random Testing is exactly as it sounds…everybody’s name goes into a hat and the employee(s)’s name(s) is drawn randomly to submit to a drug test. The employee would immediately be notified to submit to the test at once after his or her name has been selected. This is required for certain safety sensitive positions by law, including drivers whose work requires them to maintain a Commercial Driver’s License (CDL). Some companies conduct random drug testing for certain positions they have identified as “safety-sensitive”.
- Follow-Up testing may be conducted if an employee enters an employee assitance program or drug rehabilitation program for drug- or alchohol-related problems. Typically, employers will require the employee to submit to a random drug test at least once a year for two years after completing the program.
The specimen for testing may be urine, blood, hair, breath or saliva. The nature of the specimen depends on how the drug test is administered and on which drugs are being tested. The most common specimens are urine and blood. Urine is typically used for the majority of drug tests. Blood is used to determine alcohol levels in the blood to see if an individual is intoxicated. Typically, breathalyzers are used to comply with DOT/FMCSA requirements to screen for alcohol use after an accident has occurred. However, there may be other circumstances or laws where a breathalyzer may be appropriate. Hair is less commonly used because fewer laboratories have been certified to use hair samples for drug-screening purposes. However, they are reliable and many drugs will remain in a hair sample much longer than in other specimens. Swabs to test saliva are frequently used for pre-employment and reasonable suspicion testing and can be administered by the employer. If the initial swab test is negative, no other drug test is done. However, if the swab test is positive, then the employer would send the employee to a lab for a confirmation test (usually a urinalysis test).
Employers sometimes grapple with how to handle positive drug test results. While most employers have no problem withdrawing an employment offer from an applicant who tests positive for illicit drugs, they sometime struggle with what level of discipline is appropriate for a long-service employee who tested positive during a random drug screen. While it is acceptable to maintain a zero tolerance policy and terminate someone who has tested positive for illegal drugs, employers find it difficult to take that step with top performers who have been with the company for a number of years. In that circumstance, an employer could make a decision to require the employee, as a condition of continued employment, to enter a rehabilitation program and maintain certain performance standards. Additionally, they would require the individual to submit to follow-up testing for a period of time after rehabilitation has been completed.
Alcohol in the workplace creates its own special problems because alcoholism is regarded as a disability under the Americans with Disabilities Act. While an employer does not have to permit the individual to come to work under influence or tolerate aberrant behaviors that are associated with intoxication, companies may consider reasonable accommodations to enable the individual to continuing working. Usually that is a one-time opportunity and the employee may be terminated if the behavior continues. The Job Accommodation Network provides information about how to reasonably accommodate alcoholism in the workplace.
Employers that choose to adopt a drug-free workplace and implement a drug-free workplace should consult with their employment law attorneys and workers’ compensation carriers to help them develop programs that are not only legally compliant, but may also reduce their workers’ compensation premiums.
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