by Renee Mielnicki, Esquire
Besides leave of absence management issues, the second subject that I get the most questions about is drug testing employees in the workplace. I often get asked, “When can I test an employee who I think is using drugs?” I’ve also received a lot of questions from clients in states where marijuana has been legalized. They want to know how that changes their ability to drug test their employees. For that reason, I thought this would be a good time to blog about some really basic issues involved in drug testing employees. So, let’s take a look.
As with most other issues in the human resources world, it usually begins with a policy. One of the major services we offer here at East Coast is drafting employee handbooks. Your employee handbook should include a policy stating your position on maintaining and enforcing a drug-free workplace. After the policy is created, it must then be consistently enforced and in a way that complies with applicable law. I always advise employers to include four types of drug testing in their drug testing policy: pre-employment, reasonable suspicion, post-accident and random. However, if you are an employer that has CDL drivers regulated by the Federal Department of Transportation (DOT), you need a policy that complies with the DOT regulations and is over and above the discussion contained in this blog. For today, our discussion pertains to non-CDL drivers only. In addition to the four types of drug testing, the policy should also address the legalization of marijuana in states where such is applicable. In my policies, I always make it clear that the employer prohibits any drug that is not legal under BOTH state and federal law. Why? Well, that’s easy. The federal government has still not changed the law making marijuana illegal. So, even though the state in which you are operating has legalized it, the feds have not. In addition, the DOT and other federal departments have published guidance making it clear that they are not persuaded by the legalization of marijuana as far as changing their regulations forbidding it, which actually makes a lot of sense to me. Marijuana causes an inebriation effect where working under the influence would be unproductive and, in some cases, dangerous. So, the best practice in states where marijuana is legal is to make it clear to your employees in your policy that even marijuana is forbidden.
Reasonable suspicion testing is what clients ask about most. Reasonable suspicion means a suspicion that the employee is under the influence of drugs at work. It’s defined as “when a supervisor has a reasonable belief based on objective factors, such as the employee’s appearance, speech, behavior or other conduct, that the employee is under the influence of drugs.” The best way to learn about reasonable suspicion is through training. You should have an expert train your supervisors on the types of drugs that labs test for and then explain what the physical and behavioral indicators are of each drug. For instance, let’s consider cocaine. Cocaine is a stimulant and makes everything in the body speed up. Those under the influence of cocaine may be hyper, have extreme movements, talkative and have enlarged pupils. These are the types of signs a supervisor should be trained to look for as reasonable suspicion of the use of cocaine, or any other stimulant (like meth) in a common drug testing panel.
What reasonable suspicion does not include is behavior or conduct that is simply attributable to some type of common error. Take these examples: an employee who drops a product on the floor, is late to work or is in a bad mood. There could be many explanations for this type of behavior. Reasonable suspicion drug testing is just that: we suspect use because of their speech, eyes, or behavior and we have ruled out all other explanations except drug use. Supervisors who are not trained to understand a drug testing panel and the signs of use associated with each drug on the panel run the risk of causing liability to the company for a myriad of different reasons. As with any other issue, laws regulate drug testing in the workplace and must be followed. Some examples are state drug testing laws, the Americans with Disabilities Act (ADA) and Title VII. Notice I keep mentioning supervisors? There is a reason for that. We should never allow an untrained employee to be the one giving us the suspicion that led to the test. It should always be a trained supervisor that observes the employee suspected.
So what might the testing procedure look like after we suspect use? Well, it should go something like this. Once a trained supervisor has reasonable suspicion, the test should occur within 32 hours of the observation due to the rate at which most drugs dissipate from the body. If you wait too long, you probably are wasting your time because the drug may not show up in the test. In addition to timelines, you want to document your reasons for suspicion and keep them in a confidential medical file. You then want to drive the employee to a testing facility and drive them home after the test for safety reasons. Of course there is a bit more to it than this, but these are the general steps.
I also get a lot of questions from employers wanting to conduct the testing themselves at the site. You first have to check your state law to make sure this is allowed. In some states, it has to be done at a certified lab. If it is allowed under your state law, you will need some pretty tight procedural controls to minimize claims of invasion of privacy and sample adulteration. Even if the site test is positive, I would still send the sample to a lab for confirmation before taking action, just to be sure. Moreover, if your drug panel includes prescriptions drugs, which most do, you should be using a lab with a Medical Review Officer (MRO). The MRO is responsible for calling the employee if there is a positive test on a prescription and verifying that the prescription was legally prescribed and safe for use on the job. Using an MRO with a panel containing prescriptions should minimize claims being made against the employer pertaining to a myriad of issues including those under the ADA, like discrimination and confidentiality.
Before wrapping up this blog, let me just say a few things about the other three types of testing. If pre-employment testing is done, it should be a consistent practice (meaning for everyone), it should be part of the job offer (meaning a negative test will result in revocation of the offer) and it should be done at a lab where an MRO is used if prescriptions are part of the panel. As for post-accident testing, a lot of debate surrounds this subject because of the potential for testing employees who have been injured at work who then file workers’ comp claims or complaints with OSHA. Here is the easiest way I can whittle down post-accident drug testing. It should involve some fault on the part of the employee being tested after an accident. In my point of view, the employee who was sitting in the passenger seat of your company vehicle that was involved in a car accident should probably not be tested (unless of course we observed him right after the accident and had a reasonable belief he was under the influence of drugs). In my mind, post-accident testing is an attempt to promote workplace safety and find out whether the accident was caused by an employee being under the influence. Such would most likely not be the case with the passenger, so why test him or her? I’d also stay away from testing after trivial accidents. If an employee gets a paper cut, I would not be testing that person. Lastly, while it’s not necessarily required, it is a best practice to still add reasonable suspicion to post-accident testing. In other words, did the employee who caused or contributed to the accident appear to the supervisor to be under the influence? If it’s not possible for the supervisor to observe the employee after the accident, then it’s best to stick to non-trivial accidents where the employee caused or contributed in some way to the accident. It’s also best to make sure to apply this policy consistently to everyone.
There are good reasons to do post-accident drug testing. It promotes workplace safety and can be looked at favorably by your workers’ compensation insurance carrier. Please be aware though that if you are in a state drug-free workplace program, you will have to be sure to meet the requirements of that program when implementing a drug testing program.
Finally, random testing. Some states have passed laws making this type of testing illegal so make sure you check your state law before implementing this type of program. Next, this type of testing must truly be random. A best practice is to submit all employee names to a third-party vendor, like a lab. You then tell the lab the frequency under which you would like to test (i.e., 10 employees per quarter). The third-party then selects those 10 employees per quarter and you, the employer, have no idea who is being selected. The idea here is to reduce liability claims of discrimination and retaliation.
If you have questions about drug testing or drug and alcohol policies, send us an email at firstname.lastname@example.org.
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