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Workplace Drug Testing
Employers have increasingly become concerned
about the negative consequences that occur to their
businesses as a result of employees who abuse alcohol
or other drugs. Many have learned that people who have
alcohol or other drug problems are less productive,
use sick leave more often, and are more likely to injure
themselves or others on the job. Considering that 70
percent of all illegal drug users in the United States
are employed, businesses are justified in their concern.
At the same time, the workplace is an effective place
to reach people with prevention, intervention, and
treatment information. Employers have made great strides
with various approaches including such activities as
employee and family education programs, work site wellness
programs, and alcohol and drug-free workplace policies
and procedures. Employers who have taken effective
measures and who have made the work site less tolerant
to substance abuse and misuse have reaped positive
benefits such as increased productivity and employee
morale. And the benefits extend from beyond the workplace
to communities and families.
The benefits of investing in workplace prevention
are great. It is our hope that the resources listed
in this guide will provide employers, prevention specialists,
human resource professionals, and anyone who is interested
in prevention efforts in the workplace with resources
that will help guide them in making this valuable investment
in not only increasing productivity but in improving
the lives of employees and their families.
Policy & Legal
Issues Background
Drug-Free Workplace
programs, and particularly their drug testing provisions,
have been the subject of numerous lawsuits over the
past decade. In the public sector, these have involved
questions of the right to privacy, the Constitutional
freedom from unreasonable searches by the government
when an agency acts as an employer, and due process.
All employers, even those with well-intentioned programs,
can face court challenges to their Drug-Free Workplace
policy based on questions of negligence (negligent
hiring, supervision, libel, and slander), contract
law, and discrimination (racial, sexual, and disability).
Consulting with an attorney experienced with
labor and employment matters in your State is always the best course of action
to take before implementing a Drug-Free Workplace program. There are, however,
some general "rules of the road" that can help you avoid mistakes
and lessons learned the hard way by others.
The following suggestions about minimizing
legal risks and exposures are summarized from The Drug Enforcement Administration's Guidelines
for a Drug-Free Workplace.
DO:
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Become familiar with common symptoms
of drug use.
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Assume that no one in your organization is immune
to the problem of drug and alcohol abuse.
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Know your employees. Become familiar with each
one's skills, abilities, and normal performance.
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Document job performance regularly, objectively,
and consistently for all employees.
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Keep written records that objectively document
the performance of troubled employees. These can be used as a basis for referral
for to the employee assistance program and/or for testing.
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Take action whenever job performance fails, regardless
of whether drug or alcohol use is suspected.
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Know the exact steps to be taken when an employee
has a problem and is ready to seek help.
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Obtain appropriate advice when a problem is identified
or suspected, and have a witness to any actions when confronting
an employee.
DON'T:
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Misuse the Drug-Free Workplace program to discipline
employees for unrelated problems.
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Single out any employee or group of employees
for scrutiny under the policy. Be consistent in your actions with all employee
groups or classes.
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Confront a suspected drug dealer [or user] alone.
Always have a witness.
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Implement a verbal policy. An effective policy
must be written, circulated, and acknowledged in writing by employees in order
to have strong legal standing.
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Treat employees who test positive differently.
All employees who test positive must be treated consistently to maintain the
integrity of the program.
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Take action against employees based on the results
of a drug screen only. Always obtain the results of a gas chromatography/mass
spectrometry (GC/MS) confirmation test before taking
action.
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Offer rehabilitation selectively.
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Address drug abuse without including alcohol abuse
in the policy.
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Implement a policy and program unilaterally if
the workforce is represented by a union. The National Labor Relations Act requires
that terms and conditions be included in your bargaining agreement and a drug
program falls into that requirement.
Overview of Online Information:
The online links on this page can take you
in several directions. You can browse or look for:
Employers seeking to avoid legal
problems with their Drug-Free Workplace policies often turn to the
Federal standards for programs and testing established in the Model
Plan for a Comprehensive Drug-Free Workplace Program.
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The Center for Substance Abuse Prevention, the
Department of Labor, the Drug Enforcement Administration, the National Institute
on Drug Abuse all offer policy and program guidance for
employers:
- The Department of Labor also provides
summaries of State
laws that affect Workplace substance abuse programs.
Other Sources:
There is no substitute for consultation with an attorney
experienced with labor and employment matters in
your State before implementing a Drug-Free Workplace
program.
However, there may be several other sources of guidance
developed with the advice of attorneys specifically
for employers implementing Drug-Free Workplace programs.
Coalitions of community and business leaders have been
created in some States and in many towns and cities
to help employers address substance abuse, comply with
applicable laws, and provide supervisor training and
employee education and access to assistance. Look for
such groups as "Businesses Against Drugs,""Drug's
Don't Work," National Drug-Free Workplace Alliance,
or Chamber of Commerce programs. Industry and trade
associations have also developed materials to help
their members comply with law and regulation.
Reasons for Testing
Although the goals and provisions of
a Drug-Free Workplace program and policy apply to all
workers, testing is conducted under specific circumstances:
• Pre-employment Tests:
Employers who conduct pre-employment tests make offers
of employment contingent on a negative drug test result.
Pre-employment tests clearly decrease the chance of
hiring a current substance abuser and they also have
a strong "sentinel effect" in that such tests
may discourage current users from seeking employment
in Workplaces where pre-employment tests are done.
• Random Tests:
Most employers confine random tests to employees occupying
positions of safety or security sensitivity. Employees
in such positions are selected for testing through
a bone fide, random process. Random tests provide a
deterrent to substance use and abuse because individuals
have no way of knowing when testing will be conducted
or whether they will be selected for testing.
• Reasonable Suspicion Tests:
Employers who test on the basis of a reasonable suspicion
that an employee is abusing substances typically
rely on such evidence as direct observation of use or possession,
physical symptoms of being under the influence, patterns
of abnormal or erratic behavior, or arrests or convictions
for drug-related offenses.
• Post-accident Tests:
Employers who test following a serious accident or
incident on the job usually develop criteria that
establish the reasonableness of the suspicion that an employee's
substance use or abuse caused or contributed to
the accident. In some cases, employees involved in accidents
may be asked to take a drug test directly after
an incident to determine if alcohol or drug use was
a factor. Even if the accident does not appear to be
drug or alcohol-related, these tests may be necessary
for legal or insurance purposes.
• Treatment Follow-up:
Employees returning to work following treatment for
substance abuse are often subject to a return
to work agreement that calls for follow-up testing at specified
or random intervals to ensure that the employee
is continuing to refrain from substance abuse.
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