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

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

3. WHEN TO TEST
1. Random
2. Reasonable Suspicion
3. Pre-employment
4. Return to work
5. Post-Accident

4. 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)?

5. 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.

6. 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.

7. PRE-EMPLOYMENT
DRUG TESTING OF APPLICANTS
 Post offer – not at initial application
 Creates self-elimination
 Reduces chance of future problems

8. 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?

9. 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

10. 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

11. 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

12. 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

13. 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.

14. 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.

15. 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.

16. 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

17. 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)

19. Any Questions?
425447.1