Don't underestimate importance of a substance abuse policy

By Mila Stahl

Q: We suspect an employee is under the influence of drugs. We do not have a policy but can we get them tested anyway?

A: No. It is unwise to drug test employees without having a written policy on drug testing. When you single an employee out for drug testing and you do not have a policy, your action violates many state provisions and can be perceived as a discriminatory practice. Furthermore, the employer should not accuse an employee of substance abuse. An employer should focus instead on the employee’s performance problems. Substance abusers quite often have problems with attendance, high accident rates, and overall low productivity and accuracy. Start by addressing such performance issues through the company’s regular disciplinary provisions or your performance management program.

Certain employers, because of the nature of their business, are covered by regulations that involve some level of substance abuse testing. If you are in an industry that is impacted by the Department of Transportation (DOT) requirements or the Drug Free Workplace Act, you have specific guidelines for your business.

A variety of workers are covered by the DOT regulations and those include examples such as mass transit workers, motor carrier workers, truck drivers with a commercial drivers license (CDL), dispatchers and security guards who carry firearms in these operations.

Employees covered by these regulations must be tested for alcohol, marijuana, cocaine, opiates, phencyclidine and amphetamines. The regulations require uniform testing standards. They include a very complex series of testing and documenting procedures, along with employee notice, retest and confidentiality requirements. The procedures outlined in the DOT regulations can be used as a good framework to establish a drug testing program.

The Drug Free Workplace Act of 1988 applies to all federal contractors or federal grant recipients with contracts in excess of $25,000. The Act requires a written policy statement that prohibits the manufacture, possession, distribution and consumption of controlled substances at the workplace. The Act includes provisions for pre-employment certification that the employee will not use drugs in the workplace, drug prevention training during orientation and continued drug prevention training for all employees.

Title VII of the Civil Rights Act permits employers to refuse to employ people who engage in unlawful drug use as long as it is not a pretext for race, color, religion, national origin or sex discrimination, even if it has a disparate impact on classes under Title VII.

The Americans with Disabilities Act permits organizations to have policies that prohibit the possession of drugs and alcohol in the workplace. The Act also allows the prohibition of on-duty drug or alcohol use, or being under the influence of drugs or alcohol at work. The key part of the ADA to remember is that individuals who have been disabled by the use of alcoholism are protected, while those actively engaged in current alcohol or illegal drug use are not protected. Applicants who test positive for illegal drugs are not covered by the ADA. Employees with a disability are held to the same performance standards as other employees, to the extent they can perform the essential functions of their duties and do not pose a safety threat to others.

The effects of substance abuse in the workplace can be among the most costly, yet hidden, line items on a company’s balance sheet. Costs associated with workplace accidents, lost production and workers’ compensation have a great impact on the bottom line, and they can have negative overall effects on employee morale.

Incorporating the use of drug and alcohol testing in the workplace is a matter of corporate culture, company policy and even compliance in some industries. Even if an employer does not have a drug and alcohol testing policy, adopting a “zero tolerance” statement is the first step in communicating its position for such impactful behaviors.

Notifying candidates at the time of application that the company has zero tolerance for drugs and alcohol, as well as providing employees with clear and direct corporate statements in company handbooks and “break room” signs, sends a clear message that abusers are not welcome at your place of employment.

While an official corporate statement is a great first step, it is not enough. The only real way to ensure that a zero-tolerance policy is taken seriously is to back it up with appropriate action.

A good policy should be comprehensive and well thought out, addressing considerations as who and when people in the organization are to be tested and the ramifications associated with individuals’ positive test results.

As most people are aware, there are several types of substance testing, often distinguished by timing rather than type of examination. Some organizations use all of the forms of test, and others use only one or two. The decision should be made individually based on the needs of the organization and the goals of substance testing. The types are:

Pre-employment testing: Pre-employment substance testing should be used to screen all applicants for particular positions or all positions.

Random testing: Random substance testing is testing of employees on an irregular unannounced schedule. The use of random testing is critical if employers are serious about addressing the illegal use of drugs and alcohol in the workplace.

Scheduled annual or semiannual testing: These tests are most effective when used as part of an ongoing or completed rehabilitation program.

For cause/reasonable suspicion testing: Testing employees suspected of substance abuse on the job can take several forms. Organizations can test employees who behave erratically, smell of alcohol, or are the subject of complaints from the public or other employees. Employers can test after any industrial accidents.

An effective substance abuse testing program is made up of many components – management support, an effective written policy and fair administration.

Before any organization enters into the substance abuse testing arena, they need to reach a consensus that the process is appropriate for the organization. Once a policy is developed it will need to be reviewed by your legal counsel for further consideration to your particular business and/or industry. Only by marrying all of these components will a program be run effectively and the risks reduced.
 

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