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Drug testing: Minimize lawsuit risk with smart policy

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in Discrimination and Harassment,Employment Background Check,Hiring,Human Resources,Leaders & Managers,Performance Reviews

You have the right to demand a drug-free workplace, but employees also have reasonable rights to privacy. That’s why drug testing and substance-abuse prevention programs carry big-time legal risks if they’re not managed properly.
    Employers can safely administer drug testing before hiring someone, during a fitness-for-duty test and after a preventable accident.

What's new

If you think your workplace is drug-free, the government has a surprise for you. Chances are, you are wrong—very wrong. According to a recent survey, one of 12 U.S. workers is using illegal drugs. That’s self-reported illegal drug use among adult full-time employees.
    The information comes from the latest study by the Substance Abuse and Mental Health Services Administration, an agency within the federal Health and Human Services Department. The agency surveyed both public and private employees over a three-year period and found that 8.2% had used illegal drugs in the past 30 days. That’s up from earlier surveys. In 1994, just 7.6% used illegal drugs, and in 1997, the rate was 7.7%.
    The drug of choice? Marijuana.
    What may be even more shocking is the rate of drug use by profession. About 4% of teachers and social workers admitted to illegal drug use. Among construction workers, more than 15% indulged. And the prize for the highest rate of illegal drug use goes to … restaurant workers, who clocked in at a whopping 17.4% of full-time employees.
    Other patterns are also evident from the survey results. Younger employees are more likely to use illegal drugs, and usage was most prevalent among men, who accounted for two-thirds of drug users.

How to comply  

Here are some key legal issues you’ll need to address in your testing policy:
    Disability discrimination. Drug tests for illegal substances aren’t considered medical exams under the ADA, so employers can conduct them any time during the pre-employment stage. But because those tests can reveal the presence of legal drugs in an applicant’s system, this could tip you off to a person’s disability.
    In fact, to avoid liability, wait to test until you make a conditional job offer. Because applicants who test positive for illegal drugs aren’t covered under ADA, you can withdraw a job offer based on those results.
    Fair warning. Always inform applicants and employees of the specifics of your anti-drug policies, and obtain a signed and dated consent form before you administer any drug tests. Notify applicants you will drug test on the application form. That will turn away many drug users.
    Clear policy. A well-written substance-abuse policy will:

  • Prohibit the use, possession or distribution of drugs or alcohol on the job.
  • Explain how you’ll deal with employees who violate the policy, test positive or refuse to take a test.
  • State your policy on drug testing, including when you will test and your business reasons. Include the right to retesting and verification of the results.

    Timing. Think about when you’ll conduct drug testing. The most common times are during pre-employment screening, after a preventable accident and as part of an evaluation of employees with job performance problems.
    Courts look more favorably on random drug testing in jobs where there is a safety or security concern. Absent a state law that restricts employee drug testing, employers often argue successfully that their right to terminate employees at will applies when a worker refuses a drug test.

Do you need a drug-testing program?

Consider these questions when weighing the need for a drug-testing policy:

  • Do workers handle hazardous materials or run complex equipment?
  • How many company vehicles do you have on the road?
  • Who would be harmed—and how seriously—if an employee made a mistake on the job or breached security because of substance abuse?
  • Does your insurance cover substance-abuse-related incidents?
  • Are you subject to the Drug-Free Workplace Act of 1988? If you have federal contracts above $100,000 or any federal grants, you’re required to have anti-drug policies in place.

 Resources on drug testing

  • U.S. Labor Department’s interactive online service, Drug-Free Workplace Advisor: www.dol.gov/elaws/asp/drugfree/screen4.htm.
  • Labor Department information to help employers promote a drug-free workplace: www.dol.gov/workingpartners (click on “Training and Materials”).
  • Substance Abuse and Mental Health Services Administration’s web site: www.workplace.samhsa.gov. (Access a Drug-Free Workplace Kit under the “General Drug-Free Workplace Programs” tab.)

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