Wood flooring contractors work hard and deserve to play hard, but what happens when your employees mix the two? While it may be easy to identify an employee under the influence of alcohol at work, those who are using recreational drugs or abusing prescription drugs may be harder to detect—and just as dangerous on the job site. So what happens when there's an accident you think may have been drug-related? What should you do if you suspect one of your employees is showing up to the job site impaired? When you're trusting your employees with potentially dangerous equipment and expecting them to represent your company in a professional manner, you need to be sure drugs are the furthest thing from your business. One way to protect your business and other employees is to implement a drug-testing policy. But is it a good idea? Is it legal? What should you consider if you decide to begin drug testing in the workplace?
The Pros and Cons
Much has been written about the benefits of drug testing in the workplace. The most commonly cited benefits include an increase in employee morale and productivity resulting from eliminating drug users from the workforce, and decreased workplace accidents and insurance costs. Several states have programs in effect that provide savings on workers compensation costs to employers who establish drug-testing programs.
On the other hand, privacy advocates oppose workplace drug-testing programs. They argue that drug testing violates employees' privacy rights. They note that many drug tests detect not only on-the-job impairment, but also off-duty drug use and the use of legal prescription drugs. They also cite the "false positive" results that sometimes occur. Some unions use these same arguments to galvanize organizing efforts in workplaces where drug-testing policies are in effect.
Is it Legal?
Many states have laws in effect that regulate drug testing in the workplace. These laws address such issues as the notice required to employees, the circumstances under which employers can test and the permitted consequences to an employee who tests positive. A few states have laws that prohibit or restrict the use of random testing.
In the absence of a specific state statute, the biggest challenge to workplace drug testing is an invasion of privacy tort. This claim, however, is very narrow when applied to private employers and requires a showing of outrageous conduct on behalf of the employer. As such, it is largely unapplicable to drug testing by private employers.
Implementing a Policy
Employers who wish to implement a workplace drug-testing program should do so with a written policy. Employers should give adequate notice to employees—30 to 60 days—before implementing the testing.
The policy should address the following circumstances for drug testing. They include:
Pre-Employment
Nearly all drug-testing programs include pre-employment testing. By screening before hire, employers prevent illegal drug users from joining their workforce. Job applications should explain that any offers of employment are conditioned upon a negative result on a pre-employment drug test, and the applicant should consent, in writing, to the test.
Post-Accident
Many policies also provide for drug testing after a workplace accident. Careful thought should be given to the definition of "accident" in such provisions—most employers do not want to incur the cost of drug testing every time an employee cuts his finger. Frequently, accident is defined as a workplace incident resulting in an injury that requires off-site medical care and/or property damage over a specified amount.
Reasonable Suspicion
"Reasonable suspicion" testing is also common. Before implementing a policy that requires reasonable suspicion testing, employers should provide professional training to all supervisors involved in implementing the policy to assist them in identifying and documenting what constitutes "reasonable suspicion."
Follow Up
In situations where a positive test reading does not result in automatic termination, but instead referral for treatment, a provision in the policy providing for periodic follow-up testing for an identified period of time is recommended.
Random
Finally, some employers choose to implement a random drugtesting policy. When enacting a policy that provides for random testing, employers should use trained outside professionals to ensure that the sampling is truly scientifically random.
Screened Drugs
The policy should identify the drugs that will be screened. Nearly all testers screen for illegal substances including cocaine, phencyclidine, opiates, amphetamines and marijuana. Some tests also screen for the presence of legal drugs in higher-than-specified amounts, suggesting misuse of prescription drugs. Care must be taken when screening for prescription drugs, however, that established levels are sufficiently high to prevent detection of the legal use of prescription drugs that might also identify a protected disability.
Testing Methods
There are several methods of drug testing available. The most common form is a urine test. A positive test result indicates that a drug was used sometime in the recent past; it does not necessarily identify whether the person was under the influence when the sample was given. A blood test measures the actual amount of alcohol or other drugs in the blood at the time of the test. Blood tests more reliably identify whether the person was under the influence at the time the test was done, but are generally considered to be more invasive than urine tests. A breath alcohol test is the most common method for testing for alcohol. The results reveal if the individual is under the influence of alcohol at the time the breath sample is taken.
Consequences
Before beginning a drug-testing program, employers must consider how they will handle a positive test result. Although there are many options, policies often provide for referral for treatment, disciplinary measures or termination. Furthermore, it is important to specify the consequences of refusal to take a test. Most policies provide that refusal to take a test will result in immediate disciplinary action, up to and including termination. In addition, the consequences of providing an adulterated sample should be explained. Many policies provide that an adulterated sample will be treated the same as the refusal to take a test.
Implementing a drug-testing policy may seem like a hassle you'd rather not deal with. You may worry that your employees will feel you don't trust them. But ultimately, drug testing protects your business, employees and customers. Consult a lawyer to make sure you're complying with state laws and to establish a policy that meets your company's priorities.
