Employee Drug Testing: Effective Workplace Policies
EMPLOYEE DRUG TESTING
EFFECTIVE WORKPLACE POLICIES
Dressman Benzinger LaVelle psc
221 East Fourth Street, Suite 2500
Cincinnati, OH 45202
WHEN TO TEST
2. Reasonable Suspicion
4. Return to work
Not required except by DOT
Generally, not a best practice for some
It may make sense for certain industries (safety
Personal observation of an employee’s conduct,
appearance, behavior, speech or odor.
E.g., watery eyes, slurred speech, unsteady posture.
Information regarding an employee’s conduct,
appearance, behavior, speech or odor obtained from a
reliable source, or that is independently corroborated.
Possessing drugs or alcohol on one’s person.
Being in an area to which access is limited and the odor
of marijuana is present.
Frequently disappears during work day.
Highly emotional – uncontrolled crying.
WHAT IS NOT REASONABLE SUSPICION
Merely being “associated” with someone who is
known to use drugs, absent additional reliable
information suggesting drug use on the part of
the suspected employee.
Unsubstantiated rumors of drug or alcohol use.
Poor job performance, standing alone, is not
sufficient to give rise to a “reasonable suspicion”
of drug use.
DRUG TESTING OF APPLICANTS
Post offer – not at initial application
Reduces chance of future problems
RETURN TO WORK - DRUG TESTING
Return to Duty Testing: Testing of an employee
who has previously tested positive or has
otherwise been found or admitted to have
Require prior to return to work
Last chance agreement necessary?
Worker’s Compensation may require such
Do testing as part of any medical treatment
If not treatment is needed, send for a drug test
POLICIES – TO INCLUDE -
Know your industry
Tailor policy for needs
Explain when company will
What will cause termination
Tamper with sample
Refusal to test
Reporting conviction of
It is not choice of employee to
POLICIES – WHAT NOT TO INCLUDE -
Promises to offer rehab
Explanation of testing
cut-off levels, type of drug test
Asking employees to report use of prescription
Consent to testing form
Contract with a lab and establish a profile
Do not let employees drive to drug test
Send employees immediately upon suspicion
Know if any regulations or contracts require
DRUG USE AS AN EMPLOYMENT ISSUE
Current use is not a protected disability.
Having a prior history of abuse is protected, provided it is truly a
Under FMLA, drug addiction/dependence is a “serious medical
condition” only to the extent the employee is obtaining
An employee cannot receive FMLA leave for absences due to
ALCOHOL AS AN EMPLOYMENT ISSUE
Alcoholism is a protected disability, but this does not
excuse alcohol-related conduct in the workplace.
Rules prohibiting intoxication at work are enforceable.
Being an alcoholic is not a defense to workplace
Employees cannot wait until they are being disciplined to
raise alcoholism as a defense.
DRUG TESTS AS “MEDICAL EXAMINATIONS”
Are not considered “medical examinations”
under ADA; not affected by the ADA’s
limitations on medical examinations.
Not governed by HIPAA.
Still not good practice to share results.
IMPAIRMENT BY PRESCRIPTION
OR OTHER LEGAL MEDICATION
ADA prohibits employers from asking employees to
disclose the medications they are taking.
In environments where safety is an issue, can ask
employees not to take drugs that will impair while
May explain that being unimpaired is an essential job function,
and ask if he applicant will be able to meet this requirement.
This is a very tricky area-can get into fitness for duty
OFF-DUTY SUBSTANCE ABUSE
Can terminate those who use illegal drugs off
It is not a protected category even in cases of
Conduct should be prejudicial to the employer in
some manner in case of alcohol or legal drug use