When was the last time you considered your drug and alcohol testing practices? Now would be a good time to dust them off and determine whether they are legally compliant and consistent with your business objectives. If you do not currently test, but are considering incorporating drug and alcohol testing into your hiring or management practices, be sure you understand the governing laws and consider common mistakes often made by employers.
As a general matter, private employers are not required to conduct drug and alcohol testing on applicants or employees. There is an exception, however, for certain federal contractors and grantees, as well as certain safety and security sensitive industries, such as industries regulated by the Department of Transportation.
If you choose or are required to conduct drug and alcohol testing, you must ensure that you are doing so in compliance with various laws such as the Americans with Disabilities Act and Title VII of the Civil Rights Act — laws intended to protect applicants and employees from discriminatory treatment. You also need to consider the Occupational Safety and Health Administration’s (OSHA) position that employers may only test post-accident or injury when they have a reason to believe that drugs or alcohol could have contributed to the accident or injury.
Employers are also not generally required to conduct drug and alcohol testing at the state level. Laws regulating drug and alcohol testing, however, vary drastically across state lines. For example, Minnesota has a very strict drug and alcohol testing law with many specific requirements, while its neighbor Wisconsin has no specific drug and alcohol testing law. Because of the variability among state drug and alcohol testing laws, employers — especially multi-state employers — often struggle maintain compliant programs.
Among the mistakes employers commonly make when creating and administering their drug and alcohol testing programs are:
Having insufficient policies and procedures. Some states, such as Minnesota, require employers to have a drug and alcohol testing policy before they can test applicants and employees. Minnesota law specifically identifies the information that must be in the policy, including who is subject to testing, under what circumstances testing may be performed, and the rights and procedures granted by law. But what if your state doesn’t require you to have a comprehensive drug testing policy? You should still have one. Having established policies and procedures educates managers and employees about your practices, aids you in treating all applicants and employees consistently, and allows you to better manage your drug and alcohol testing program.
Testing prematurely or unnecessarily. Some employers have a hankering to require a drug or alcohol test any time they have a thought or inkling that an employee could be under the influence — or after an employee has admitted to being under the influence of drugs or alcohol at work. If you are one of these employers, you need to consider whether this is legal and beneficial for your organization. It’s legal so long as the law allows this type of testing and you have satisfied all necessary conditions. Depending on state law, you may have additional legal obligations after you have tested an employee — such as offering treatment following a positive test as opposed to immediate termination. Determining whether it’s beneficial, however, requires an analysis of the risks, results, and costs associated. If an analysis reveals that the program is incredibly expensive and not yielding any additional protections for the organization, perhaps testing isn’t providing your organization any actual benefit.
Failing to anticipate potential outcomes. Oftentimes drug and alcohol tests come back with a clear indication as to whether an individual has passed or failed a test — which clearly determines an employer’s next steps. But what happens if a test comes back inconclusive because it was diluted, tampered with, or for some other reason? You need to have an established procedure to ensure you are acting swiftly so the test is still potentially relevant, and consistently to avoid the appearance of or actual disparate treatment. Consider including a requirement to consult with the testing lab to determine how it came to the inconclusive result, the criteria used, and any established protocols the lab may have or recommend for such inconclusive results. Without an established procedure, you will likely spend a significant period of time considering your options from a legal and best practices perspective upon learning of an inconclusive result — a period of time that may be the difference between a positive and a negative retest. Making decisions on the fly without an established procedure can also result in implicit biases and stereotypes playing a role in how an employer addresses an inconclusive test result.
Testing without established goals. Drug and alcohol testing practices can serve a legitimate business purpose. Often times, however, employers drug test to theoretically protect their organizations, employees, and other people from danger or liability — but in reality the programs are not achieving those results. For example, given the uncertainties of handling marijuana in the workplace — which was contemplated by my colleague in this recent article, many employers have considered not testing for or ignoring tests positive for marijuana. If your company has or is considering modifying your program to accommodate certain circumstances, you may want to assess whether your testing program is serving a purpose for which it is intended.
Register for our complimentary webinar “Finding your way through the haze of drug and alcohol laws” on November 28 for more information on how drug and alcohol laws impact the workplace. HR Hotline clients can contact the Hotline for more information on drug and alcohol testing laws and best practices. If you’re not currently an HR Hotline client, contact us online or contact your ABCR representative for more information on how to enroll.
Hannah advises employers on leave policies, discrimination, harassment, accommodations, wage and hour obligations and any other issues that may arise in the workplace.
Hannah advises employers on leave policies, discrimination, harassment, accommodations, wage and hour obligations and any other issues that may arise in the workplace. In addition to providing practical solutions to employment law matters, Hannah has extensive private practice experience. Her focus included early intervention advice and solutions to employers, as well as representing them in the defense of administrative claims. She now works on a team dedicated to providing solutions for employment law and compliance matters for employers of all sizes. Hannah graduated from William Mitchell College of Law, after receiving a Bachelor of Arts degree from Winona State University.
On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
“The only thing that is constant is change.”
Turns out that dusty old Greek philosophers occasionally say profound things (Heraclitus also said that a man’s character is his destiny). And since the Greeks are considered the fathers of democracy and were responsible for no small number of laws themselves, it seems an appropriate departure point to talk about the constantly changing landscape of employment laws.
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