Alcohol and Drugs in the Workplace
When considering whether to implement a drug and alcohol testing program, employers should be aware that, for most employers, testing is not required or regulated under the federal Drug-Free Workplace Act of 1988. The majority of employers are, however, subject to state and local laws that limit or prohibit workplace testing. These employers may still test employees for a wide variety of substances, but only if they follow the state or local rules.
Testing is one very important way an employer can protect the workplace from the negative effects of alcohol and drug abuse. A drug testing program can discourage employees from coming to work unfit for duty and discourage other substance abusers from joining the company. Aside from the regulations that cover government contractors and the transportation industry, no comprehensive federal law regulates or prohibits testing by private employers. In general, private employers have more freedom to conduct drug testing than public employers.
Drug and alcohol testing policies
If an employer chooses to implement a drug and alcohol testing policy, the policy should be written with attention to the following issues:
The policy should specify the circumstances under which employees are required to undergo testing to determine whether they are under the influence of alcohol or drugs. For example, an employer may require every employee to undergo such testing for “cause” (i.e., after an accident), or when two supervisors who have been trained to recognize the signs of intoxication believe an employee is under the influence. Employers may choose to implement a random testing policy, or may require employees who have violated the company drug policy to undergo random drug tests in the future. However, be aware that several states restrict or completely prohibit random testing.
Employers should select from among the various types of tests that may be legally available (e.g., urine, blood, Breathalyzer, hair, saliva). Every drug has its own unique window of detection. Employers that are concerned about effectively testing employees who reside in or near states where marijuana use is legal should consider lab-based oral fluid testing. Such testing is legal in all states, with the exception of Maine, Hawaii, and Vermont. This method can detect marijuana use within the last 24 to 48 hours, making it difficult for an employee who tests positive on a Monday afternoon to claim he or she used marijuana recreationally on a Friday evening.
The policy should state whether it takes only one supervisor or several managers plus the Human Resources department to make the decision to require the employee to take a drug test. It is still legal to conduct pre-employment drug testing, which includes testing for marijuana, in all states. However, it is important to check your state’s laws as some states have specific mandatory drug testing laws and others have voluntary regulations. Such a test is less controversial when conducted after an offer of employment has been made.
The policy should address the question of whether a company physician or an outside medical lab will conduct the testing. The policy should also state the process which will be followed when the individual tests positive.Generally the individual interacts only with the MRO and has an opportunity to provide proof of prescription medication they are taking that may have resulted in the positive drug test.Is a second test required?An employer may want to place the employee on suspension with or without pay. Spell out the exact process.
The best idea is to be clear on your state’s laws and have a precise, written workplace drug usage and testing policy that clearly states an employee cannot have, use or be under the influence of drugs or alcohol in the workplace. Include these substance abuse policies into your handbook. Make sure you thoroughly cover all of your bases and are revising regulations as laws change. You can state in your policy that detection of any amount of illegal substance or alcohol is a violation of company policy. Also include language on employee behavior while at work regardless if they have been drug tested in the past and had a negative result. For example, just because an employee may be using marijuana for medicinal purposes does not mean they can be falling asleep at their desk. Poor performance, regardless of marijuana use or not, could prompt a drug test or consequences.
And finally, include language regarding what happens when you do receive a positive drug test result. Lay out the consequences for policy violations regardless of the state’s law. Give us a call today if you’d like a Drug and Alcohol Policy for your company and we can arrange an initial chat. If we are unable to assist you with all of your HR needs, we will put you in touch with an HR professional who can.