With our nation on the heels of an opioid epidemic, states continuing to legalize marijuana use, drug testing positivity rates continuing to rise, and the perception of a dwindling job applicant pool, some employers are challenging the entire idea of performing drug testing in their workplaces. Are there still benefits for conducting employee drug testing?
In short, the answer is, yes! Why? Because the risks of not testing are substantial. There are legitimate and valuable benefits from workplace drug testing programs. For example, we discussed the top 10 reasons for implementing a drug and alcohol testing program in a recent article.
Perhaps the most impactful reason to establish an employee screening program is the obligation for employers to foster a safe and productive workplace. Employers must carefully consider the pros and cons of creating an employee drug testing program that is specific to their workplace, most employers would agree that the pros far outweigh the cons. Ensuring a safe workplace must be considered as a top priority for any organization, and substance abuse screening is a crucial component.
A comprehensive employee drug testing program will include screening both pre-hire and post-hire. Employers should carefully consider when testing will take place and make sure the requirements are consistent throughout the company and or by job description.
Pre-Employment: The most common type of drug test is for pre-employment, conducted as a condition of future employment. Employers are recommended to require the drug test only after a formal job offer has been made.
Post-Accident: Employers should conduct employee drug testing after an accident/incident to determine if drug use may have played a role. Employers are cautioned to require testing of all individuals who may have contributed to specific accident/incident.
Reasonable Suspicion: Becoming even more critical with the rise in marijuana use, employers can require employee drug testing when illegal drug use is suspected. Employers are strongly encouraged to train their managers on how to accurately detect and handle reasonable suspicion situations effectively and on the dangers of drug abuse in the workplace. The details of each event should be thoroughly documented.
Random: Often, employers wish to establish a random employee drug testing program where a percentage of all employees are randomly screening throughout the year. This is an excellent deterrent to ensure employees remain drug-free beyond the standard pre-employment drug test. Employers are cautioned to ensure the random selection process is computer-based, documented, unbiased, and spread out in an unpredictable pattern randomly throughout the year.
Return-to-duty: For those employees that fail an employee drug test, get treatment from a Substance Abuse Professional (SAP) and are ready to return to the workplace may be required to submit a return-to-duty employee drug test.
Follow Up: A Substance Abuse Professional (SAP) may also require follow up or ‘periodical’ testing as an additional treatment or recovery requirement.
Promotional: Some employers elect to require employee drug testing as a condition of employment promotion.
Among the many components of any drug and alcohol testing program is how tests will be conducted. When considering the different test methods available, you should focus on what you are trying to accomplish. Are you trying to detect drug users so you can remove them from your workplace or offer them help with a drug or alcohol problem, are you trying to prevent drug users from entering your workplace, or both?
Choosing the right test method to meet your goals can be critical. The test method essentially means selecting the part of the human body or which bodily fluids you will have analyzed for the presence of prohibited drugs.
These test methods are not all the same. They may have different detection levels (cutoff levels) and different detection times or “windows of detection.” The window of detection is critical as it dictates when a specific drug can be identified based on how soon after someone uses the drug and how long after they stop using it.
There are instances that employee drug testing is a requirement for employers. Some examples of such situations are:
Department of Transportation (DOT) Testing: Companies that have employees conducting federally-regulated and safety-sensitive work (truck drivers, bus drivers, pilots, boat captains, rail workers, etc.) MUST follow DOT drug & alcohol testing rules, which include the screening of marijuana. Furthermore, the DOT has made it very clear that medical marijuana users are not exempt from federal DOT regulations.
State Benefits Programs: Several states offer benefits to employers who voluntarily comply with state workers’ compensation premium discount programs (Drug-Free Workplace Programs). To earn the incentives, the employer must comply with a very complex set of rules including when to test, how to test and for what substances – which often includes the required screening of marijuana.
Federal Grants: Companies that operate from a state or federal grant likely must continue to screen for marijuana as a condition of the grant.
Contractor/Subcontractor Work: It is very common for contractors and subcontractors to require the screening of marijuana, whether by company policy, contract requirement, customer requirement, etc.
State Regulations: Several states have some form of law or rule that may require an employer to follow Federal (HHS/DOT) rules, which includes screening for marijuana, either in general or in specific circumstances.
Employers must take extra caution to clearly understand the state and federal laws that specifically apply to their employee drug testing program. Federally-regulated (DOT) testing programs have particular rules and regulations that must be followed. Several states throughout the U.S. have mandatory drug testing laws, in which employers must follow if they wish to conduct employee drug testing.
Several states also offer financial incentives for employers who voluntarily comply with the state’s requirements. These benefits include the opportunity to reduce your workers’ compensation insurance premiums (through state Drug-Free workplace Programs), leveraging the Rebuttable presumption of intoxication defense to deny a workers’ compensation claim, and to deny unemployment benefits for employees that fail a drug test. These benefits vary by state and have particular rules that must be followed to qualify for the benefit.
Nearly all workplaces have a mix of federally-regulated or safety-sensitive employees and non-regulated employees. The drug testing requirements each of these two employee groups must be considered and properly enforced.
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