When the Exxon Valdez ran aground and spilled millions of gallons of oil into Alaska’s pristine offshore waters, it was an ecological disaster. It was also a high-profile example of what can happen when employees abuse drugs or alcohol on the job. Exxon spent years slogging through the aftermath.
Drug abuse is a serious problem. That’s why many employers carefully screen applicants to help keep users of illegal drugs off their payrolls. But what if drug users slip through the screening and get hired? Or existing employees begin using illegal drugs? You can still take steps to protect your employees and your business:
• Know your organization’s policy. Review your employee handbook. Most organizations have a stated policy about drug testing and illegal drug use. Whatever the policy, follow it. Don’t be the only manager to require drug tests unless, for example, you manage the only department in which employees directly affect public safety.
• Don’t keep the policy a secret. If your policy requires employees to pass drug tests as a condition of employment, remind employees of that. You might post notices of the policy in work areas, for example.
• If no company policy exists, develop one for your department. Don’t do drug testing using the whim system. Determine why and when you’ll test for drug use. When hiring, focus your attention on employees whose jobs involve safety or security. Once employees are hired, you also want to be able to test if you have a reasonable suspicion or evidence of drug use. The policy also should expressly prohibit the sale or possession of illegal drugs. Make sure the legal department or an attorney approves it.
• Know the law or consult with someone who does. Drug testing, like many employment issues, pits two competing sets of rights squarely against one another: the employee’s right to privacy and the employer’s right to a safe, productive work environment. Given this conflict, it isn’t surprising that federal and state legislatures and courts have enacted laws or expressed opinions on the subject. Your options must be evaluated within the limitations of the states and court decisions that apply to you and your company’s employees.
• Know your options for testing. You can’t discipline an employee for drug use merely on the suspicion of drug use. You need to have evidence of drug use, which is why testing is so important. (Of course, you can discipline an employee for poor performance, violation of company rules, insubordination, and so forth whether or not the infractions are drug-related.) You have six different potential options for testing, and there are appropriate uses for each:
• Periodic testing is conducted, as the name suggests, periodically, in conjunction with an annual physical, for example. But periodic testing also may include unannounced tests for a group of employees (such as people in jobs in which safety or security are at issue) when random testing is impractical because of the number of employees involved. Periodic testing can be controversial because it is unrelated to any suspicion or evidence of drug use and therefore unlawful in some states. Controversy is mitigated if the physicals are job-related and consistent with business necessity, if employees are told before being hired that they’ll be tested, and if employees are told they’re subject to discipline if they fail the test or refuse to take the test.
• Reasonable suspicion testing may be done if you have direct, specific, and immediate observations of behavior, appearance, odors, and/or speech that suggest drug use or that your substance abuse prevention policy has been violated. (Symptoms of drug withdrawal also may be grounds for testing.) It’s best to have another member of management confirm your observations.
• Post-accident testing assesses employees who have had an on-the-job accident that caused a fatality, a serious injury, or significant property damage (scarring the Alaskan coastline counts). Such testing may also be done after near-accidents, such as when an employee loses control of a vehicle but manages to stop without hitting anything. Unfortunately, in many states the fact that an accident occurred is not sufficient grounds for creating the suspicion that drugs or alcohol were involved. Check with an attorney about the laws in your state.
• Random drug testing refers to selecting employees for testing at random and without notice. It may also refer to testing of the entire workforce on a date selected at random and not announced. (Note: Employers in some industries, including trucking, shipping, airline, and nuclear power, are required to do random testing of some employees.) As a legal matter, this is the most risky type of drug testing you can require. There are fewer justifications for it, and employees are not warned. Random testing is illegal in Rhode Island, Vermont, and other states.
• Return-to-work testing is used after an employee has tested positive for drug use or otherwise violated a company’s drug policy, after rehabilitation and before returning to work. Follow-up testing is designed to encourage recovering addicts to stay clean. Testing is done after rehabilitation at pre-determined regular intervals. Before doing either of these kinds of testing, check the law. It’s also a good idea to draft a written contract that addresses the terms and conditions for return-to-work and for follow-up testing.
• Choose a methodology. There are several methods of drug testing. The accuracy, legality, and expense of the tests vary, so review your options and choose what’s best for your company.
• Choose a vendor. If your HR department already has identified a testing vendor, use that one. If not, be sure to select a reputable and reliable vendor.
• Encourage employees to seek treatment. Even if you are not required by law to give employees leave to seek treatment, consider allowing such leaves if employees request them. (Usually, policies allow employees to take leaves without disciplinary consequences if employees volunteer for them before employers find they have violated policies.) There are good reasons to do so:
• Drug-abuse prevention programs that include employee assistance or rehabilitation are most effective at achieving drug-free workplaces.
• Employees have incentive to seek treatment earlier.