Workplace Drug Testing

Employee drug testing is a widely accepted workplace ritual, carried out in thousands of businesses across the country. Before implementing such a policy there are several legal obligations an employer must address. Even if testing is in place already, employers in many states find their options limited when they find a positive result.

As an example, the Americans with Disabilities Act says that alcoholism is a disability, which is protected under the act. This means an employer cannot fire someone or refuse to hire them because of alcoholism. That’s just a single example of the potential pitfalls employers face when dealing with substance abuse and testing in the workplace.

The biggest concern voiced by employees and organizations alike is the invasion of privacy. A recent case in California said an employer had no right to know if an employee was taking prescription drugs as it was considered personal information. The employer needed to know to eliminate a false positive as a potential cause of the employee failing a drugs test. Yet in another case, the Tenth Circuit found in favor of an employer who requested this information from their employee.

Any employer wanting to enforce a coherent drug testing policy in the workplace is going to need the help of a very good lawyer. There is no template for a program like this, as the needs of the company vary from place to place, but there are five things each program needs to become successful.

• A written policy statement that is clear and unambiguous.
• Supervisor training to ensure employees know their obligations and that the tests and subsequent actions are legal.
• Employee education and awareness training to ensure everybody knows that is expected of them, and the consequences for falling short.
• Employee assistance for those times when someone has failed a test and needs help.
• Drug testing itself.

Many organizations use the U.S. Department of Transportation example for their drug testing. Like all federal programs was established by an Executive Order, signed by President Reagan in 1986. The DOT drugs tests look for marijuana, cocaine, opiates, phencyclidine and amphetamines, which are regarded as the most popularly abused substances. Testing for alcohol is more complicated because it only remains in the blood stream for a few hours.

Often, merely having a strict policy in place is enough to keep substance abuse down in the workplace. Prevention being better than a cure at every level. However, in those states where drug testing is a little more problematic, having a strict discipline policy can help. In fact, there is a school of thought that says a rigid discipline policy is actually more effective than a drug testing one. While that remains to be proven, a combination of the two for employers who can afford to implement them seems the best possible solution.