Random Drug Testing at Work: Random Drug Testing Do’s and Don’ts

Misuse of drugs and alcohol while on the job can result in accidents that cause injuries to others and property damage for the company. Also, drug and alcohol abuse may also impair a worker’s ability to perform even the basic, day-to-day tasks and causes reduced productivity.

Employers are obligated by the OSHA, Department of Transportation (DOT) regulations, and federal and state safety and health laws to create a safe working environment for all employees. One method that is recognized as helping increase safety is workplace drug testing. However, employers cannot just go around the office demanding random alcohol and drug testing at work whenever they would like. Instead, companies’ must have a proper drug testing workplace policy that gives employee proper notice of drug testing, including random testing, and other legal protections. Still, there are ways for employers to create drug-free workplace programs while legally protecting their business and employees.

Below, we’ll discuss employees’ rights and obligations regarding random drug testing at work.

Times when employers drug test employees?

There are six instances when a company tests employees for drug and alcohol use. These include:

Pre-employment drug screens

Employers use pre-employment drug tests to screen out applicants that have drugs in their systems. The purposes of drug test applicants is to increase the likelihood of hiring an employee who will does not carry a higher risk of on-the-job injuries and understands and complies with rules and laws.

Reasonable suspicion testing

Reasonable suspicion testing is based on a belief that an employee is using or has used drugs or alcohol in violation of the employer’s policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience. Among other things, such facts and inferences may be based on, but not limited to, the following:

• Observable phenomena while at work such as direct observation of substance abuse or of the physical symptoms or manifestations of being impaired due to substance abuse;
• Abnormal conduct or erratic behavior while at work of a significant deterioration in work performance;
• A report of substance abuse provided by a reliable and credible source;
• Evidence that an individual has tampered with any substance abuse test during his or her employment with the current employer;
• Information that an employee has caused or contributed to an accident while at work; or
• Evidence that an employee has used, possessed, sold, solicited, or transferred drugs while working or while on the employer’s premises or while operating the employer’s vehicle, machinery, or equipment.

Post-Accident Reasonable Suspicion

When employees have caused or contributed to an on-the-job injury that resulted in a loss of work time, which means any period of time during which an employee stops performing the normal duties of employment and leaves the place of employment to seek care from a licensed medical provider. The Company may also send employees for a substance abuse test if they are involved in on-the-job accidents where personal injury or damage to Company property occurs.

Confirmation Testing

As part of a follow-up program to treatment for drug abuse when an employee has involuntarily entered a rehabilitation program because of a positive confirmed test result. The frequency of such testing will be a minimum of at least once a year for a two year period after completion of the rehabilitation program. Advanced notice of testing will not be given to the employee.

Fitness for Duty

The Company will require employees to undergo a drug and alcohol test as part of any routine fitness-for-duty medical examination.  Employees will be notified in writing before any fitness-for-duty medical examinations begin.

Random Testing

The Company may choose to implement random drug and alcohol testing of employees.  Selection of employees for testing is made using neutral criteria so that all employees eligible for testing have an equal opportunity of being tested.  The Company will notify the randomly selected employees in writing before they test will take place.

Drugs usually tested

When testing employers for drugs, employers can test for many different types of drugs, and usually do so using urine sample although other types of text may also be used such as a saliva sample, hair, or blood. Also, the may choose to only test a small number of drug classifications or a larger number. Each classifications of drug selected to be tested is referred to as a panel.

The most basic test used is what is called a 5-panel drug text. The 5-panel option tests for the following classifications of drugs: THC (marijuana), cocaine, amphetamines (including methamphetamines), opiates (includes herion and opioids), and phencyclidine (PCP).

There are also 7-panel, 10-panel, 12-panel up to 22-panel drug tests. The additional drug classifications that may be tested include, but it not limited to: benzodiazepines, methadone, barbiturates, Quaaludes, propoxyphene, Buprenorphine, Ethyl-glucuronide, Fentanyl, Nortriptyline, Methadone, Morphine, Oxycodone, and Tramadol.

Random drug testing at work policy

If an employer has a random drug testing program, they must have a policy that explains to the employee the random selection process. The policy will typically consist of a statement of purpose, implementation, the selection process, definition of all terms, the definition of illicit substances, and their and the employees’ responsibilities and restrictions. Employers may include the drug and alcohol policy in their employee handbook or may have a standalone policy such as a drug-free workplace policy. Either way, the company will have each employee read and sign the policy. By signing the policy, although never obligated to participate in a random drug testing at work, the employee agrees to be disciplined, including being fired, for not doing so.

Also, once an employee is randomly selected, an employer will usually give the employee prior notice of the date the test will be administered. This gives the employee an opportunity to the employee notice of prescription drugs that may cause a positive result or decline the test, although declining the test may result in discipline.

What is the random drug testing process?

Many employers rely on initial on-site drug tests to weed out employees who clearly do not have drugs in their system. They use off-the-shelf urine tests to administer the test.

If an employee test positive based on the initial test, employers will have a third-party drug testing company administer a formal conformation drug test. The company will then rely on a designated medical review officer, who is usually a licensed physician, to interpret and explain the drug test to the employee.

Can you refuse a random drug test in the workplace?

Employees can refuse random drug testing at work requested by there employer. However, there may be consequences. Most random drug test in the workplace policies make it a policy violation to for employees to refuse a random drug test. Some employers immediately terminate employees who refuse to take a drug text without a good faith reason. Others may not immediately termination the employee but instead discipline them with a warning or a suspension.

That being said, there may be times when an employee may have a good-faith reason to refuse random drug testing at work. For example, some prescription drugs will show up in a drug test. An employee who is legally taking prescription drugs should let the test administrator of the presence of the prescription drugs in their system, at which time the employer can determine whether they will excuse the drug test or delay it until the employee is no longer taking the prescription drug.

What if an employee has a positive test result?

If an employee test positive for a random drug test at work, the employee may ask to retest a second time if they reasonably belief the first test resulted in a false positive.

If an employee knows they have prohibited drugs in their system when tested, not all is loss if they do not want to lose their job. For example, some employers offer employees Employee Assistance Programs (EAPs). These programs will allow employees with a history of drug or alcohol abuse to get counseling or therapy to help them overcome their addiction.

Also, employees with drug or alcohol abuse that negatively impacts their ability to perform the essential functions of their job may be protected by the Americans with Disabilities Act (ADA). Under the ADA, employers are required to provide employees with reasonable accommodations to help them perform their jobs.

What if you test positive for marijuana?

In some states, employees are allowed to smoke or take some other form of marijuana, cannabis, or THC either recreationally or with a medical prescription. In these cases, employers are typically prohibited from disciplining an employee who tests positive for marijuana. In all other states, employers may chose to discipline an employee who tests for marijuana.

Random drug testing at work and employee privacy

A company is required to keep an employee’s medical records confidential and to take steps to prevent disclosure of an employee’s medical record to unauthorized third-parties. If an employer fails to keep an employees drug text results private, the employer may violate federal laws such as the Health Insurance Portability and Accountability Act (HIPAA) as well as possible state privacy laws.

Laws for random drug testing at work

There are no state drug testing laws that require employers to randomly test employees for either drugs or alcohol. However, some states have laws govern workplace drug testing. Also, some state provide employers a discount for the workers’ compensation fees if the implement and enforce an drug-free workplace policy. Below is a list of the state laws addressing drug testing:

Many federal laws, in contrary to individual state’s laws, require companies in certain industries to implement and enforce drug-free workplace policies which include random drug testing at work. These laws are enforce by the following federal agencies: Department of Transportation (DOT), Federal Transit Administration (FTA), Federal Motor Carrier Safety Administration (FMCSA), Federal Aviation Administration (FAA), Federal Railroad Administration (FRA), Pipeline Hazardous Materials Safety Administration (HMSA).

Conclusion

Drug testing in the workplace can be done safely and in the best interest of employees and the employer. As part of its safety obligations, companies may implement drug and alcohol testing policies which may include random testing. Employees are encouraged to understand their company’s drug-free workplace policies, avoid drug use consistent with that policy, and be prepared for the drug test results.