Drug use in the workplace costs our country billions of dollars every year. According to the National Drug-Free Workplace Alliance, over 74 percent of all current illegal drug users and over 74 percent of heavy alcohol users work. These workers are absent from work far more frequently than non-users, and when they do show up they’re 33 percent less productive. They’re also more likely to be involved in workplace accidents, to steal from their workplace, and to produce lower quality work.
If your workplace is suffering from drug abuse, it may be time to implement a drug testing system. But what do you need to know about drug testing? Read on to learn more.
How might I go about testing my employees for drugs?
The most common method for drug testing employees is urine, however there are many other options for testing employees. Hair testing has been accepted by courts as a permissible way to test for drug use, but blood and breath specimens may be used as well.
What safeguards can I enforce to protect against tampering with urine specimens?
Most courts have found watching employees to be an invasion of privacy, but there are other ways to protect against cheating on drug tests. These methods include the dying of toilet water, testing the temperature of urine, listening to an employee urinate, or having the employee wear a hospital gown while the sample is collected.
If an employee tests positive on a drug test, what kind of action can I take?
According to Executive Order 12,564, action is required for any federal employee that tests positive for a drug test. These employees should be referred to an employee assistance program where they will be expected to either comply with the programs rules and stop drug use or face termination.
Private employers have their own policies for employees who test positive for drug use. These policies might include firing, mandatory rehabilitation, or simply not being considered for the position. A private employer is not required to allow an employee to complete rehabilitation before they are fired.
One of my employees is involved in a counseling/rehabilitation program for drug use through an employment assistance program (EAP). Can I still test them for drugs?
As an employer you have the right to test employees undergoing rehabilitation to make sure they are complying with these programs.
Can I legally require my employees to take a drug test?
Yes. All federal, state, and private employees are subjected to drug testing. According to the Supreme Court, although drug testing infringes on an employee’s privacy, it is necessary in order to protect the health and safety of those in the work force.
In many states, laws for drug testing employees look much like federal law. Some states get more specific with their laws. For example, in California employers are able to test potential employees, but must have cause to test current employees (and there are very strict guidelines in place on what exactly may be considered reasonable suspicion.)
Many private employers elect to require drug testing for employees. Testing employees may improve health and safety, prevent illegal activities, and increase productivity in the workplace.
Can I test/fire my employees for marijuana in a state where it is legal?
Yes, you certainly can. Federal employment laws trump state employment laws, so as long as marijuana remains illegal at the federal level you can legally test for marijuana. Arizona and Delaware do provide protection against punishment for medical marijuana users that are not impaired on the job, but other states including Colorado have ruled that employees can be fired for medical marijuana use.
Can I drug test job applicants at my company?
Yes. For the most part, any employee seeking first time employment may be tested as a condition of employment, even without a reason to believe they may be using drugs.
Certain states do have limitations on pre-employment drug testing in place. California law for example allows a drug test only after the applicant has received an offer of employment conditioned on passing the test. Other states require employers to provide written notice of drug testing, or even to indicate in job postings that potential employees will be tested. Be sure to check the laws in your state.
Is it legal to have my employees drug tested if I find reasonable suspicion that they are taking drugs?
Yes it is. Existing employees may be tested, however in many cases you must have reasonable suspicion that an employee has been taking drugs.
What does having “reasonable suspicion” to test for drugs mean exactly?
In order for you to claim reasonable suspicion, you must have a legitimate reason, one based on logic and facts, to suspect that an employee has been using drugs. You may not simply guess or worse, discriminate, against an employee.
According to workplacefairness.org, the following may be considered reasonable suspicion:
-Direct observation of drug use or physical symptoms of drug use (slurred speech, uncoordinated movement, etc.)
-A report from a reliable source that an employee is using drugs.
-Evidence that an employee has tampered with his/her drug results.
-Erratic behavior while at work or significant deterioration in work performance.
-Evidence that the employee has used, possessed, sold, solicited, or transferred drugs while working or at work.
Can I randomly test my employees for drugs without reasonable suspicion?
Generally, courts have found that no suspicion is needed to test current employees in a job that poses serious risk of human injury or property damage. In some states, private employers are able to randomly test employees so long as advance notice is given. In others, there must be reasonable suspicion in order to test.
Again, be sure to check your state laws.
If an employee who was injured outside of work is prescribed painkillers and they show up on a drug test, can he or she be fired?
In this situation, and as long as the employee is taking the prescription according to doctor instructions, they may be protected by the Americans with Disabilities Act. This law states that an employer may not discriminate on the basis of disability. However, prescription medication abuse is at an all time high in this country. Prescription painkillers increase workers’ compensation costs, work time lost, and length of worker disability. These workplace costs make up nearly half of an estimated $60 billion dollars a year in economic costs of opioid abuse. Therefore, an employee may be fired if:
-The disability no longer exists
-The medication interferes with the employees ability to perform essential job functions (with reasonable accommodations)
-If the employee is taking the prescription illegally
If one of my employees is involved in an accident can I have them drug tested?
Federal law permits employers to drug test an employee during an accident investigation, and many state laws say the same. As an employer, you may be held liable for injuries or damage caused as a result of work accidents. However, if an employee tests positive after an accident, it is considered a result of prohibited conduct and you will be protected from liability.