Misuse of drugs and alcohol is often a cause of accident and injury, which is why employers test their applicants and those already employed.
Drug and alcohol abuse impair a person’s ability to perform even the basic, day-to-day tasks. This results in reduced productivity, increased risks of accident and injury, and putting themselves and others in harm’s way.
It’s your responsibility, as an employer, to create a safe working environment for all your employees. Drug testing is a suitable method of ensuring a drug-free work environment and the right way of weeding out employees that break the drug-free rule.
However, you can’t just go around the office demanding that your employees submit to drug testing, that’s illegal. Your employees have their rights, and those rights should be protected no matter what. Still, there are ways of creating a drug-free workplace program, while legally protecting your business and your employees.
Take a minute to read about what actions you can take to create a drug-free workplace. More importantly, we’ll discuss your rights and obligations and those of your employees.
How can you test your employees and applicants?
Testing your employees and applicants purely based on your own whim is strictly illegal, even if you have reasonable doubt. Unfortunately, there are no laws that require adults to submit to mandatory drug tests. But some laws and regulations enable you to, within the boundaries of the law, request your employees to undergo a drug screen.
To do so, you must first establish a comprehensive written drug-free workplace policy, with all the necessary elements included. Those legal elements consist of a statement of purpose, implementation, definition of all terms, the definition of illicit substances, and your and your employee’s responsibilities.
Each and every applicant or employee must be issued a copy of the said drug-free policy for him or her to read, sign, and date. By signing that policy, the applicant and employee empower you to legally request mandatory drug testing, which is to be conducted by the state-approved laboratory.
However, there’s a catch – a multitude of them.
The dos and don’ts
In this section of the article, we’ll discuss drug screening for applicants and drug screening for employees.
If you have a drug-free workplace policy set up, you must notify your applicants about mandatory drug testing. Depending on where you live and the laws in place, this notification might be mandatory, and for the sake of argument, let’s say it is.
You achieve this by stating that you’re running a drug-free workplace somewhere in the job postings. This way, your applicants will know that they might be submitted to drug testing. After collecting your applications and interviewing potential hires, you must decide which applicants to hire before issuing them a copy of a drug-free workplace policy.
In other words, you can’t request a person to submit to drug testing, without offering them a job first. After offering them a job, you must issue them a copy of the drug-free policy, fort them to read and sign. If they refuse to sign the copy, you have no legal grounds to request a pre-employment drug test, but you can withdraw your job offer.
If they do sign the policy, they empower you to request mandatory drug testing, at your discretion, but more on that later.
In case the drug test results come back negative, you can hire the applicant. Positive test results are a different story. If the applicant tests positive for drugs, you will have increased risks if hire them. The reason behind this is that all drugs are illegal according to federal law. This also includes marijuana, regardless of whether or not weed is legal in your state, as it is still federally illegal. Moreover, although some states that allow recreational or medical marijuana use provide some employment protections to employees, none of them provide protections to employees who are impaired on the job due to their marijuana use.
When it comes to those already employed, the situation is slightly different. Assuming you have a drug-free policy in place, you can test all your employees, as long as you adhere to specific rules.
First of all, you must provide proper notice about an upcoming mandatory drug test. Only a handful of states allows random drug testing without advance notice. Please consult with your employment lawyer or human resource professional about this rule, as it varies from state to state.
Keep in mind that you must test entire departments one by one, or at least 50% of your employees. Targeting an individual employee is strictly prohibited, unless there’s a reasonable doubt, like the direct observation of drug use, abnormal conduct, or causing a work-related accident.
You can choose a type of test, whether it’s by blood, urine, or hair. While the US Supreme Court considers urine and blood collection as minimally intrusive methods, hair testing is becoming increasingly popular due to a long detection span. Whichever the case, your employees have the right to know which tests they’re being submitted to, and you’re obliged to let them know.
Your drug-free policy must clearly state the specific consequences of violating the policy. But one thing you mustn’t do, if an employee fails a drug test, is disclosing that information to anyone. Disclosing personal information about your employees is punishable by law, and the same rules apply for drug test results.
If any of your employees test positive for drugs other than marijuana, you can, if included in your drug testing policy, terminate their employment, or provide them with an opportunity to seek treatment. If your employees test positive for marijuana and they are in a state that allows recreational or medical use, you may need to be more careful and conduct an impairment analysis to determine if they were impaired by marijuana while working. If you are uncertain, it is recommended you consult an attorney or human resources professional.
Other things you should know
Besides having a comprehensive written drug policy, you must educate your employees and supervisor about the said policy and dangers of substance abuse.
The drug-free policy is but a small step in creating and maintaining a drug-free workplace environment. For more information, it would help if you talked to an employment lawyer or human resources consultant about drug testing your employees.
Drug testing in the workplace can be done safely and in the best interest of employees and the employer. It’s your duty, as an employer, to provide knowledge and safety for your employees, as well as protect their best interest, as you would your own.