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Substance abuse places a major burden on all segments of American society, including the workplace. The majority of drug users are employed, and when they arrive at work, they don’t leave their problems outside the door. The good news, however, is that employers have enormous potential to protect their businesses from the negative impact of substance abuse by educating employees about its dangers and encouraging individuals with substance abuse problems to seek help.
Scope
Everyone involved in running a business — both employers and employees — suffers when workplace alcohol and drug abuse occurs. Some costs are obvious, such as increased absences, accidents and errors. Others, such as low morale and high illness rates, are less so, but the effects are equally harmful. With this in mind, effective organizations seldom tolerate employees who come to work under the influence of a substance. Employees who come to work under the influence of illicit drugs are always a concern for employers and those directly responsible for safety in the workplace.
Regulatory citations
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Key definitions
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Summary of requirements
To help deter substance abuse in the workplace, or its effects, an organization may test for drugs. Many organizations perform pre-employment drug screening, and some perform drug tests during employment for reasons such as post-accident or reasonable suspicion, to determine whether or not a substance was involved, or randomly to help keep the effects of substances out of the workplace.
A drug testing program can deter people from coming to work unfit for duty and also discourage alcohol and other drug abusers from joining your organization in the first place.
A drug testing program must be developed in accordance with relevant legal requirements (which vary in their application to particular workplaces, and by state), such as disability discrimination provisions and collective bargaining requirements. Many states have specific statutes regulating drug testing.
In some cases, such as organizations with DOT-covered employees, drug testing is required; in others, it is optional. When drug-testing is optional, the decision about whether or not to test will depend on a variety of factors such as the cost, appropriateness, and feasibility.
Structure of testing. If an organization chooses to perform drug tests, it will need to decide how the program will be set up and operated. The list of questions below will help provide a beginning:
- Who will be tested? (Only applicants? All employees? Only employees in “safety sensitive” positions?)
- When will they be tested? (When performance becomes unacceptable? When an employee behaves abnormally? On a random basis? As part of a physical examination? After an accident when there is a reasonable possibility that drug use could have been a contributing factor?)
- For what drugs will they be tested?(Consider drugs commonly used in your area as well as state laws.)
- How frequently will there be tests? (Weekly? Monthly? Once a year?)
- What will be done if an applicant tests positive? (Refusal to hire? Be sure to take state laws into account when considering consequences.)
- What will be done if an employee tests positive? (Referral to counseling and treatment? Allow employees more than one chance to become drug-free before termination? Termination? Be sure to take state laws into account when considering consequences.)
- What tests will be used and what procedures will be followed? (Who will collect the specimens? Will a confirmation test be used? What laboratory will be used? Will a medical review officer be used? How will employees’ privacy and confidentiality be protected? Are there state laws to consider?)
- Urine Test: The most common form of drug testing is to analyze a sample of urine for traces of drugs. A positive test result only indicates that a drug was used sometime in the recent past; it does not tell whether or not the person was under the influence when giving the sample.
- Blood Test: A blood test measures the actual amount of alcohol or other drugs in the blood at the time of the test.
- Saliva: Oral fluid tests may be an option for testing for recent drug use. If a test is given at the work site, some states require a positive test to be confirmed by a laboratory.
- Hair testing: Hair tests may indicate a pattern of illicit drug use over a period of time.
- Breath-Alcohol Test: A breath test is currently the most common method of testing for alcohol. The results tell if the individual is under the influence of alcohol at the time the breath sample is taken.
The reason for the concern is that if someone is denied an opportunity to be re-employed because of a failed drug test, and subsequently engages in rehabilitation, then reapplies at the organization within one year, the Americans with Disabilities Act may preclude the policy.
State and federal laws. Many states have drug testing laws that determine what an employer can and cannot do. Employers should determine what laws, if any, exist in the states where they conduct business to ensure that the testing rules and procedures established comply with state regulations.
Employers also need to consider whether there are any federal laws that will impact the way they conduct drug tests. Federal law requires drug testing for operators of aircraft, railroad equipment, mass transportation vehicles, and commercial motor vehicles under Department of Transportation and other regulations.
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.
An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting. An employer may not retaliate against employees for reporting work-related injuries or illnesses. This would include certain drug testing practices.
Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. Employers need not specifically suspect drug use before post-incident testing, but there should be a reasonable possibility that drug use by the employee could have contributed to the reported injury or illness. For example, it would not be reasonable to test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by lack of machine guarding or a tool malfunction. Drug testing under these conditions could constitute prohibited retaliation.
The OSHA rule allows employers to conduct post-accident drug testing to comply with the requirements of a state or federal law, regulation, or program, including drug testing pursuant to the Department of Transportation rules or Workers’ Compensation Drug Free Workplace policies.
In conducting drug testing, employers must balance legal liabilities due to lawsuits (brought by unhired applicants and employees who refuse to take the test or who are discharged or disciplined for positive test results) against the well-being of customers, clients, fellow employees, and members of the general public who may be injured or affected by a drug-using employee.