Drug Testing: Legal Implications of Your Company Policy
Originally published: 02.01.16 by Jo McGuire
In every major case in the U.S. where an employee has sued for wrongful termination over a positive drug test, courts have ruled in favor of the employer's right to maintain a safe and drug free workplace. There are core consistencies in each of these cases from which we can derive best practices for withstanding legal challenges.
In every instance, employers had a clear workplace drug and alcohol policy, and the employees were well aware of the policies that were routinely enforced through employee drug and alcohol testing. While these three vital components help maintain a consisent set of practices and protections, each require thoughtfulness, effort and consistency.
Whether a company employs one individual or thousands in a corporate environment, there is much at stake for employers whose investment and livelihood depends upon our collective choices. Quite frankly, one very unfortunate accident by an employee under-the-influence could cost a large company significantly or a small company everything. Implementing protective factors is a priority and a right for every stakeholder in the workplace.
As state laws evolve to allow for various applications of marijuana use, workplace challenges come into play. Some states are implementing ambiguous language, often confusing and even contradictory. It will likely require court decisions to clarify what is allowable as these trends run their course, however we can look to the established precedents in current case law and confidently recognize some reliable DOs and DON'Ts.
Do not implement a drug-testing program without having a policy in place. This is one of those non-negotiable areas that can cause immediate liability. Your policy is your ultimate guidebook.
Your policy should be very clear. State in plain language what is expected but also avoid over-generalizations. While zero-tolerance environments are the norm, are you clearly stating what you do expect? Have you addressed prescription medications? Will you require notification of meds with impairment warnings? To whom will those be reported? Will there be position descriptions that require a physician's release or a Fit-for-Duty evaluation?
Avoid "case-by-case" scenarios. This phrase tends to be a safety "catch-all" phrase. While sounding like a safeguard, it actually screams inconsistency, which is liability waiting to happen. Consistency is key in creating appropriate expectations and reducing wild-card outcomes.
Use the term "under-the-influence" rather than "impaired." Impairment is extremely difficult to prove beyond a reasonable doubt, but coming to work under-the-influence of any substance is largely understood as unacceptable.
Employees should know your policy. Incorporate reminders and discussions about expectations into your work routine. These can be simple annual safety meetings over lunch where policies are reviewed. Maintain sign-in sheets on file to record attendance in case "proof of awareness" is needed.
Effective drug screening programs are an expected part of the safety culture. The fact is, regular drug users often access Internet forums that recommend employers who do not drug test. Most likely those recommended never intend to be known as "drug-friendly" and are typically businesses where employers feel the added expense of a drug test is too much. Yet there is not a test on the market that costs a fraction of what is spent on accidents or lost productivity due to employee substance use .
Use certified collections professionals. While performing your own screening is better than nothing, if it is not your area of expertise, it could be a mistake. Certified collections professionals know how to spot cheating, use reliable products and have no bias, reducing liability and increasing confidence for a fair test.
Use products that fit your needs. Urinalysis is the most common test, but oral fluid is gaining popularity with high accuracy and short detection windows for recent substance use. If you utilize quick test devices, clarify when a sample will be sent to the lab for confirmation. Most collections professionals will help you choose what products, drug panels or methods will best suit you.
Do the right test. Specify what types of screening the company will participate in, such as: pre-employment, random, post-accident, reasonable-cause, etc. In litigation, an employer may be asked to prove that the pool of employees selected for screening was truly randomized. There are computer programs for performing scientifically random selections, or a Third Party Administrator can provide this service in order to avoid the appearance of favoritism or discrimination. Regular supervisor training for recognition of signs and symptoms of substance use is highly recommended to prepare for reasonable cause situations. Quality training will include practice scenarios.
Use a Medical Review Officer (MRO) to verify positive drug tests. When a drug test result is verified by the lab as positive, using an MRO who can serve as a buffer between you and an employee who may need professional help. An MRO can legally review prescription medications and is trained to differentiate impairing or illicit substances.
Every employer should seek to create an environment where employees feel safe to come to work without fear of negative outcomes due to a co-worker who may be under-the-influence. Drug testing should not be viewed as a "gotcha" tool but rather as a deterrent for unsafe behaviors and an opportunity to help someone who may have developed problematic habits.
Job loss does not have to be the only option and in fact, job retention can be a tremendous positive for someone who pursues recovery. While making sure to comply with the laws of the state in which you are doing business, your policy will guide you in reaching your safety goals and your workplace culture will follow suit.
Jo McGuire is executive director for Of Substance Media and the president of Five Minutes of Courage. She is an accomplished trainer, writer, speaker and consultant for safe and drug free workplace policies and compliance. You can contact Jo at email@example.com or 719-290-0839, or visit jomcguire.org for additional information.