Employee Drug Testing: Effective Workplace Policies


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Employment Attorney Kelly Schoening of DBL Law speaks on developing effective employee drug testing policies that work within the law.

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Employee Drug Testing: Effective Workplace Policies

  1. 1. EMPLOYEE DRUG TESTING EFFECTIVE WORKPLACE POLICIES Kelly Schoening Dressman Benzinger LaVelle psc 221 East Fourth Street, Suite 2500 Cincinnati, OH 45202 (513) 357-5284 E-mail: kschoening@dbllaw.com
  2. 2. WHEN TO TEST 1. Random 2. Reasonable Suspicion 3. Pre-employment 4. Return to work 5. Post-Accident
  3. 3. RANDOM TESTING  Not required except by DOT  Generally, not a best practice for some employers  Cost-prohibitive  Hurts morale  It may make sense for certain industries (safety sensitive jobs)?
  4. 4. REASONABLE SUSPICION  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.
  5. 5. 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.
  6. 6. PRE-EMPLOYMENT DRUG TESTING OF APPLICANTS  Post offer – not at initial application  Creates self-elimination  Reduces chance of future problems
  7. 7. 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 abused substances.  Require prior to return to work  Last chance agreement necessary?
  8. 8. POST ACCIDENT  Worker’s Compensation may require such testing  Do testing as part of any medical treatment  If not treatment is needed, send for a drug test
  9. 9. POLICIES – TO INCLUDE -  Comprehensive  Know your industry  DOT  Government contracts  Tailor policy for needs  Explain when company will test  Pre-employment  Suspicion  Random  Post-accident  What will cause termination  Positive result  Tamper with sample  Refusal to test  Reporting conviction of drug/alcohol  Related statute  Mandatory  It is not choice of employee to have test
  10. 10. POLICIES – WHAT NOT TO INCLUDE -  Promises to offer rehab  Explanation of testing  cut-off levels, type of drug test  Technical requirements  Asking employees to report use of prescription drugs  Consent to testing form
  11. 11. BEST PRACTICES  Contract with a lab and establish a profile  Train supervisors  Do not let employees drive to drug test  Send employees immediately upon suspicion  Know if any regulations or contracts require special testing
  12. 12. DRUG USE AS AN EMPLOYMENT ISSUE  ADA  Current use is not a protected disability.  Having a prior history of abuse is protected, provided it is truly a prior history.  FMLA  Under FMLA, drug addiction/dependence is a “serious medical condition” only to the extent the employee is obtaining treatment.  An employee cannot receive FMLA leave for absences due to drug/alcohol use.
  13. 13. 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 misconduct.  Employees cannot wait until they are being disciplined to raise alcoholism as a defense.
  14. 14. 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.
  15. 15. 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 working.  Pre-employment  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 issues
  16. 16. OFF-DUTY SUBSTANCE ABUSE  Can terminate those who use illegal drugs off duty  It’s illegal  It is not a protected category even in cases of addiction.  Conduct should be prejudicial to the employer in some manner in case of alcohol or legal drug use (prescriptions)
  17. 17. Any Questions? 425447.1