Policy elements

Unless an employer falls under federal or state regulations, a workplace drug and alcohol policy can be written as the employer sees fit. In general, a policy includes the following elements:

• A why statement
• Who the policy applies to
• What’s prohibited
• Testing information (when and how)
• Consequences of policy violation
• Employee assistance programs that are available
• A confidentiality statement

Policy details

The specifics of the policy will depend on:

• Company culture
• State drug testing laws
• State marijuana laws
• Federal requirements

Because state drug testing and marijuana laws vary widely, multi-state employers may need to add state addendums to their policy to account for differences in state laws.

Steps to take when creating a workplace drug and alcohol policy

1. Determine whether a federal policy is required

Employers in some federally regulated industries, such as the trucking industry, need to create a policy based on federal regulations for covered employees. This policy must contain specific information, as required by federal regulations. For example, employers who have drivers covered by the Department of Transportation (DOT) drug and alcohol testing regulations need to follow the policy requirements found in Title 49, Part 382, of the Code of Federal Regulations. A general workplace drug and alcohol policy is not sufficient when employees need to be tested under federal regulations. A policy adhering to federal requirements would also be needed.

A regulated company can also have a general workplace drug and alcohol policy that covers only non-regulated employees. Any testing conducted under the workplace policy must be completely separate from testing conducted under the policy for federally regulated employees.

2. Determine whether your company is complying with a voluntary state drug and alcohol testing law

Some states offer employers a discount on workers’ compensation insurance if they have a drug-free workplace program that follows the program’s requirements.

In some cases, employers complying with the voluntary law need to have a drug and alcohol policy that meets the law’s requirements.

These states have voluntary laws providing a discount on workers’ compensation insurance:

• Alabama: Workers Compensation Premium Discount Act
• Arkansas: Voluntary Drug Testing Program
• Florida: Premium Reduction Act
• Georgia: Workers’ Compensation Premium Reduction Act
• Hawaii: Workers’ Compensation Premium Discount Program
• Idaho: Employer Alcohol and Drug-Free Workplace Act
• Kentucky: Drug-Free Workplace Program
• Mississippi: Drug Free Workplace Workers’ Compensation Premium Act
• New York: Code Rule 60, the Workplace Safety and Loss Incentive Program
• Ohio: Drug-free Safety Program
• South Carolina: Workers’ Compensation Premium Reduction Program
• Tennessee: Drug-Free Workplace Program
• Virginia: Workers’ Compensation Premium Discount Program
• Wyoming: Division of Workers’ Compensation Program

If your company is in a state with a voluntary law, see if your company is participating. Make sure your policy adheres to program requirements.

3. Begin the policy with a why statement

Employers not subject to federal or state requirements can structure a policy according to their company’s needs. The policy usually begins with a why statement lets employees know why this policy is being enacted.

For example, it could read:

Because the company is concerned about substance abuse and the wellbeing of its employees, it is committed to a drug-free and alcohol-free workplace To ensure that the workforce is productive, the workplace is safe, and the success of business is not hindered by substance abuse, the company has established a substance abuse policy.

4. Determine who’s covered

The policy should state who it applies to. For example:

This policy applies to employees of _____________________ and applicants for employment.

5. Clarify what’s prohibited

This section of the policy details what you will not allow in the workplace. While state laws vary with regard to what is allowed for substance abuse testing and marijuana use, in all states employers can:

• Prohibit marijuana, alcohol, and illegal drug use in the workplace
• Prohibit marijuana, alcohol and illegal drug use on work time
• Prohibit possession of marijuana, illegal drugs, and alcohol on company property and in company vehicles
• Take action when an employee shows signs of being impaired by marijuana, alcohol, or illegal drugs

An employer’s policy could note that:

The unlawful manufacture, distribution, dispensation, possession, or use of an illegal drug, including marijuana, is prohibited whenever employees are working, operating a company vehicle, or are present on company premises. The possession or consumption of alcohol is also prohibited. In addition, employees and applicants are prohibited from being under the influence of marijuana, alcohol, or any illegal drug while working.

6. Outline drug and alcohol testing requirements

If you will be testing employees and applicants for drugs or alcohol, check state law to see if there are testing restrictions. States may regulate when testing is done or how the test is required to be conducted. Some states, including California, New Jersey, and New York, restrict marijuana testing. All testing must comply with state law.

If testing is allowed, your policy should include information about when tests will be conducted and testing procedures that will be used. You may also include information on which drugs will be tested for.

A testing policy could note that:

The presence of alcohol or an illegal drug in an employee’s system above established threshold levels is prohibited in the workplace and on work time. New hires may be required to pass a drug test.

Testing will be conducted under the following circumstances:

• Before an employee begins work
• When signs of drug or alcohol use are shown
• On a random basis (for illegal drugs only)
• As part of a return-to-work agreement

You could also provide additional information on each type of testing: pre-employment tests, reasonable suspicion tests, random tests, post accident testing, and follow-up testing.

Pre-employment tests

Describe when a pre-employment test will be required and when it will be conducted. A new hire may be required to pass a pre-employment drug test before beginning work. An employer could only test employees hired for certain roles, such as those that include safety sensitive duties.

Reasonable suspicion tests

Outline when an employee may be tested because of suspected drug or alcohol use. In general, employees may be tested if current signs of drug or alcohol use are observed. Those signs should be documented.

Random tests

Describe what is meant by a random test and how employees will be selected. Generally, random testing means that employees will be selected for testing using a computer-based random number generator or another valid method. This is done to ensure that there is an equal probability that any employee from the group of employees will be tested.

While random drug tests are allowed when permitted by state law, random alcohol testing is generally not permitted under the Americans with Disabilities Act (ADA). This is because a test for alcohol is a medical exam, and it can only be conducted at certain points in the employment process. It can be conducted only:

• After an offer of employment is made, but before an employee begins work.
• When there is reasonable suspicion of alcohol use based on observable evidence.
• When allowed after an employee in a safety-sensitive role returns to work after going through a rehabilitation program

Post accident testing

Describe when post-accident tests will be conducted. It is a best practice to conduct a post-accident drug test when warranted as part of the investigation to find the root cause of the accident. You may consider circumstances such as whether:

• An employee may have been at fault for causing the accident,
• An accident caused significant physical harm or property damage,
• Testing is required under a state workers’ compensation law,
• There is a workplace history of drug or alcohol use contributing to accidents,
• There is a high magnitude of potential harm if testing is not conducted.

Having a blanket post-accident testing policy and always testing when a certain dollar threshold is met without considering the nature of the accident is risky because it does not allow for the possibility that there is no way drug or alcohol use could have played a role in the accident.

When conducting a post-accident test, all employees whose conduct may have had a role in the incident should be tested. If a bystander’s actions could have contributed to an accident, the bystander should be tested as well.

Follow-up testing

Follow-up tests for employees who return to work after a substance abuse program should be conducted as recommended by a substance abuse professional. Testing too often or for too many months or years could be considered discriminatory.

Additional testing considerations

Your policy should address how testing is conducted and describe the steps that are taken to ensure that the test result is valid. A split sample may be tested when an initial positive result is received, for example.

When a prescription medication causes an initial positive result, that result should be reviewed by a medical review officer or another qualified individual. If there is a legitimate medical explanation for the initial positive test the test should be verified as negative. State law may require employers to consider accommodations for medical marijuana use, and medical marijuana may need to be treated as a prescription drug.

Consequences

Consequences for a positive test depend on company culture and state law. A person violating the policy could be suspended, terminated, or offered the chance to return to work after participating in a rehabilitation program.

Some states, including Minnesota, Maine, Rhode Island, and Vermont, require employers to offer an employee a second chance if a test is positive.

The policy could read: Anyone violating this policy will be subject to the following [insert company-specific information].

Employee Assistance

The policy should also include information about substance abuse treatment programs that are available.

It could state:

Employees who have a substance abuse problem are encouraged to seek and complete treatment. The company encourages those employees to contact one of the resources listed here: [Insert company-specific information]. Participation in the employee assistance program (EAP) is confidential, and will not jeopardize employment or advancement, but participation will not protect employees from disciplinary action for continued unacceptable job performance or policy violations.

Confidentiality

All medical information must be kept in a file that is separate from general employment information. Drug test results must only be shared with those who have a need to know. Let employees know this with a confidentiality statement. This could read:

All information relating to drug test results or EAP services will be treated as confidential.

Drug-Free Workplace Act of 1988

If you have a federal contract or grant, your policy must prohibit the manufacture, use, and distribution of controlled substances in the workplace. It must also spell out the consequences of a policy violation and let employees know that they must notify the employer within five calendar days if convicted of a criminal drug violation in the workplace. An employee must face sanctions if convicted of a drug-related crime in the workplace.

A policy including this information could note that:

The manufacture, use, and distribution of controlled substances in the workplace is prohibited. Employees convicted of a criminal drug violation in the workplace must notify [Department or Person] within five calendar days. An employee who is convicted of violating any criminal drug statute will have sanctions imposed or will be required to satisfactorily participate in a drug abuse assistance or rehabilitation program.

Regular updates

State laws change frequently, and a drug and alcohol policy should be regularly reviewed and updated as needed.

Legal review

Your drug and alcohol policy should be reviewed by legal counsel to make sure it applies with all applicable laws and regulations.