In a CER webinar titled “Drug and Alcohol Testing in California: Effective Strategies That Protect Your Company and Your Employees,” Marc L. Jacuzzi outlined some guidance for employers who are designing a workplace drug testing policy. The laws still have plenty of gray area, so Jacuzzi advised that be sure to consult with legal advisors to ensure compliance with applicable state or local laws (and also meet your company’s needs) before you begin, then design your workplace drug testing policies to withstand any legal challenges.
Questions to Ask When Designing a Workplace Drug Testing Policy
Here are some key considerations when designing (or considering designing) a workplace drug testing policy:
- Who will be tested? All staff? Only job applicants? Only employees in safety-sensitive positions?
- When will tests be conducted? Pre-employment? After a reasonable suspicion or for cause? Only after an accident? Periodically? Post-rehabilitation? Randomly? (If they’re random, the position must be safety-sensitive)
- Which drugs will be tested for when testing applicants? Which drugs will be tested for when testing employees for illegal drugs? Will you be testing employees for a broader range of substances, including alcohol and certain prescription drugs?
- How will the tests be conducted? Will you do it yourself? Will you utilize a certified laboratory? (Using a certified laboratory is recommended)
Designing a Workplace Drug Testing Policy: Other Considerations
When you’re assessing the answers to the questions above, you may find yourself wondering whether your workplace drug policy should even require testing. Testing is not always the answer. Jacuzzi noted that “when you have a reasonable suspicion [of drug use] you probably also have cause for performance management or discipline. Straight-forward discipline for inappropriate workplace behaviors is much less risky than testing. ”
If you go the discipline route, remember that you shouldn’t ask about health or assume health issues or drug problems as the reason for poor performance. Making these assumptions can get you into trouble. Just process the disciplinary issue and see how the conversation progresses.
If you do create a workplace drug testing policy, be sure to provide for limits on the intrusiveness of the procedure (such as by having the employee testing done at a medical facility by persons not connected with employer). Also ensure that the chain of custody for the sample is preserved (so that tests do not get mixed up). This will be less invasive to the employee’s privacy rights.
Finally, it’s also important to obtain an applicant’s or employee’s consent prior to any drug testing. While this may seem obvious, you will want to have a policy in place and have them sign off on the policy in advance.
To register for a future webinar, visit CER webinars.
Marc L. Jacuzzi, Esq., is a shareholder in the law firm of Simpson, Garrity, Innes & Jacuzzi (www.sgilaw.com). He advises clients regarding all aspects of the employer/employee relationship including hiring and termination, wage and hour requirements, employee classification, civil rights and discrimination issues, employee investigations, commission plans, employment contracts, employee handbooks and policies, confidential information agreements, reductions in force, leaves of absence, employment audits, M&A employment issues, violence in the workplace, and international employment issues.