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Why you need Employee Drug Testing



   Author: MetalMag
Location: MetalMag.com


Why you need employee drug testing

By Mel Hedin

According to the Drug-Free Workplace Act, 47% of workplace accidents are drug or alcohol related. What's more, when comparing alcohol and substance abusers to non-abusers, statistics show that for abusers:

  • Absenteeism is 66% higher.
  • Health benefit utilization (which affects premium rates) is 300% higher.
  • Disciplinary action is 90% higher.
  • Employee turnover is significantly higher. According to other experts:
  • Average losses per abuser are $7,000 annually.
  • Approximately 15% of American workers abuse alcohol or substances, or both.

    While some may debate these numbers, they clearly indicate that a substantial problem exists in the American workplace. Unfortunately, construction and the steel erection industry have consistently remained atop the list of industries with the highest abuse rates.

    Any business owner or manager worth their salt can look at these figures and immediately recognize the substantial cost of alcohol and substance abuse in the workplace. While I don't have specific figures to support this claim, I can tell you from many years of investigating accidents in construction and general industry that those where alcohol or drugs are involved tend to be more severe and costly, in both human terms and in damage to equipment, materials, and vehicles. However, these costs pale in comparison to the associated liability risks and related costs when employees injure or kill non-employee third parties while conducting work-related tasks.

    One of the saddest situations of which I have personal knowledge involved a very successful electrical contractor who employed his son, a known alcohol abuser. While operating company vehicles, the son received several DUI citations and was involved in multiple wrecks.

    Tragically, he hit and killed two teenage girls while intoxicated and operating a company vehicle. As a result, the contractor lost his business and all of his assets, 175 employees lost their jobs, his wife left him for not taking action sooner, and his son was sentenced to prison for vehicular homicide.

    Ironically, the contractor was later killed in a single-car accident while driving intoxicated, as his life spiraled out of control. The losses in dollars in this situation exceeded $20 million. The loss in human life and the related suffering of victims and perpetrators was immeasurable. As you might expect, this contractor did not have a substance abuse policy or program in place, despite many urgings from his attorney, his closest colleagues, and myself.

    If you take nothing else from this article, please remember this: If you don't have a substance abuse policy and drug testing/screening program in place, consult your attorney immediately and get one in place as soon as possible. Your business, and your conscience, will be much better off.

    Since state and local laws vary significantly regarding this matter, it is highly advisable to consult with an attorney or legal expert experienced in labor and employment law before developing and implementing a policy. Furthermore, many of your customers impose requirements that may or may not be in compliance with applicable statutes.

    Key components of a drug-screening program
    The first and foremost issue for discussion is what constitutes a comprehensive Drug-Free Workplace Program (DFWP). Most experts agree that the following features are core attributes of an effective program:

  • A clear and conspicuously posted policy stating the company's position on drug and alcohol use and abuse in the workplace. Once established, your policy should be carefully explained to all new and existing employees. It is also a good idea (and mandatory in some states) to provide each employee with a copy of the policy and get them to sign off, acknowledging their understanding and consent to the established protocol for screening/ testing (pre- and post-employment and post-accident).
  • A clear and specific policy concerning the protection of employee rights to privacy of any related information. (Also mandatory in some states.)
  • Clear and specific protocol for screening/testing to include: a description of the type of testing; when, where, and by whom; and how the results will be communicated to the company and to the affected employee.
  • An employee assistance program. Some state laws may not require this. In many states where it is required, the employer is responsible for providing some form of treatment at company cost. Subsequent treatments may or may not be at company expense.
  • Drug and alcohol abuse education and training. Though normally not required, training can make your program more effective in the long-term.

    Note: Where it is allowable by law, we highly recommend preemployment screening (subject to the constraints of the Americans with Disabilities Act, which precludes any such screening unless a conditional offer of employment has been made), random testing on a periodic schedule, and postaccident testing. State statutes for randomized testing differ significantly. Therefore, your policies should comply with all applicable statutes to avoid being subject to lawsuits for illegal employment practices or other related issues. (See accompanying story, "Legal issues arising from on-the-job drug testing")

    One of the biggest problems faced by contractors is that implementing a DFWP may negatively impact their access to otherwise qualified labor pools. These days, finding good and qualified help is hard enough without eliminating sizeable portions of the labor base due to such a program. This philosophy has kept many a contractor from implementing a program, or from effectively enforcing policies if they do exist.

    While I sympathize with the problem, I can assure you that neglecting or ineffectually managing this issue will eventually cost you much more than just money. I can also assure you that if you are aware that an employee is using or abusing alcohol or other substances while at work or conducting company business (such as traveling to or from the workplace in company vehicles) you should not, for any reason, fail to take prompt and effective disciplinary action.

    One of the reasons my friend mentioned previously lost his business, and subsequently his life, is that it was established in court that on many occasions he failed to take action despite specific knowledge of offenses by his son and other employees. This was prima facie evidence of his gross negligence in these matters.

    In the construction industry, DFWPs are fairly commonplace when large contractors and projects are involved and when the owners are large-scale industrial or commercial firms. However, contradictions often exist between the programs and policies of the owner, controlling contractor, and subcontractor. These matters should be reviewed carefully far in advance of deployment to the jobsite. Some of the more important matters to ascertain are:

  • The constraints of the contractor's policy differ from those of the site policy.
  • Posting and notification requirements for affected employees if site policy is different from company policy.
  • Requirements of third-party testing services and related contractor responsibilities.
  • Test type and protocol and testing facility compliance with controlling standards and applicable law.
  • Cost responsibilities for testing.
  • Verification of employee drug testing if third parties are involved in supplying qualified personnel for the site.
  • Compliance of disciplinary action and treatment policies with controlling standards and applicable law.

    Abuse is often a multigenerational problem
    As a final note of importance, there is an aspect of this issue very seldom spoken about: The generational consequences of alcohol and substance abuse and the effect of family involvement.

    To establish credibility here, I must confess something with some reservations. However, I hope that my admission will help you to realize that I am intimately knowledgeable about this subject.

    I am a grateful, recovering alcoholic. I have been sober for many years, and I recommend a valuable information resource for employees whose personal lives are affected by alcohol or substance abuse: TheAntiDrug.com website. I urge you to investigate this information and use it whenever possible to help both you and your employees better understand this problem. I believe it would be a very valued service to your employees and be much appreciated by those who truly need such information.

    This is important for two reasons. First, the construction industry is laden with multigenerational tradesmen, and substance abuse is a multigenerational problem. Second, employees who may be reluctant to go elsewhere for such information or are too ashamed to get help may have greater trust in those with whom they have daily contact.

    I have also investigated other valuable sites with pertinent information for those who are struggling with developing their company drug-screening policies and programs (see "Help on the Web"). These sites have a plethora of information at your disposal.

    Mel Hedin is a professional safety consultant who has authored many training courses, programs, policies, and business Communi-cations on occupational safety and health. He has consulted extensively (now the Metal Building Contractors and Erectors Association), the Associated Builders and Contractors, and members of MBMA, as well as with many contractors & roofers in the metal construction industry.

    HELP ON THE WEB:

    TheAntiDrug.com

    Created by the National Youth Anti-Drug Media Campaign to equip parents and other adult caregivers with the tools they need to raise drug-free kids. Provides access to articles and advice from experts in the fields of parenting and substance abuse prevention; science-based drug prevention information, news, and studies; and support from other parents striving to keep their children drug-free.

    U.S. Department of Labor, Working Partners for an Alcohol- and Drug-Free Workplace

    A one-stop source for information about workplace substance abuse prevention.

    U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance

    Offers guidance on drug and alcohol issues within the transportation industry. A useful site if you have employees operating company vehicles and equipment on public roadways.

    Whitehouse Office of National Drug Control Policy

    Presents facts and figures on major drug categories and general information on prevention, treatment, and enforcement policies.

    Center for Substance Abuse Prevention

    Provides centralized access to information about drug-free workplaces and related topics. To obtain summary information about your state's laws, go to the site's Drug Testing area. In the list of topics on the left, choose Policy and Legal Issues, Overview of Online Information, State Laws.

    Legal issues arising from on-the-job drug testing

    Significant confusion exists over whether drug testing violates the law, specifically the Americans with Disabilities Act (ADA),which makes it unlawful for employers to discriminate against a qualified individual with a disability. It covers all employers with 15 or more employees. However, similar state laws may cover smaller companies, so employers are advised to seek local counsel to determine additional compliance obligations.

    The scope and application of the ADA is a still evolving area of law. However, certain conditions are not covered as disabilities under the statute. The Equal Employment Opportunity Commission (EEOC), which enforces the law, has clarified that an "individual with a disability" does not include someone who is "currently engaging in the illegal use of drugs, when the employer acts on the basis of such use." (42 USC 12210(a); see also 29 CFR 1630.3(a)).

    The term "illegal use of drugs" refers to the possession or distribution of drugs unlawful under the Controlled Substances Act (21 USC 812.22). It does not include the use of a drug taken under supervision by a licensed health care professional or other uses authorized by the CSA or other provision of Federal law. But it does cover the unlawful use of prescription controlled substances. This is a growing problem because employees initially treated with narcotics for pain (e.g., following a back injury or surgery) may become addicted and continue using such medications long after legitimate medical treatment ceases.

    The reference to a person "currently engaging" in the illegal use of drugs encompasses all individuals whose use of illegal drugs is recent enough to trigger a positive test. Such "current drug users" are excluded from the protection of the ADA. Therefore, if an employer determines through testing that a worker is actively using illegal drugs, the company can take adverse employment action without fear of litigation for wrongful discharge.

    In addition, the ADA has a "direct threat to safety and health" affirmative defense, which permits employers to refuse to hire or to terminate workers whose medical condition (including active addiction or workplace use of alcohol or illegal drugs) makes them a danger to themselves or others. According to the EEOC, a "direct threat" means a significant risk of substantial harm.

    This determination must be based on "objective, factual evidence regarding an individual's present ability to perform essential functions of a job. An employer cannot refuse to hire [an individual] because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation."

    Moreover, employers who mandate drug testing must be cautious about the way in which information is solicited. In EEOC v. The Hernandez Companies, Inc. (D. Ariz. 1998), the employer had required employees to disclose the use of prescription medication prior to taking a post-employment drug test, regardless of whether such disclosure was job-related. Legal action was initiated when the employer terminated an employee for testing positive for methadone because he had not disclosed that he was taking it by prescription prior to the drug test. The matter was resolved through a consent decree providing $65,000 in back pay and $10,000 in compensatory damages for the terminated employee. The company also agreed to change its drug testing procedures to allow employees to provide an explanation for a positive result for a controlled substance and to refrain from asking employees to disclose the use of prescribed medication.

    Finally, employers must be careful not to refuse to hire someone because they had a history of drug use or alcoholism but are now in recovery. Although the ADA excludes individuals currently engaging in the illegal use of drugs, it does not exclude individuals who have a record of such use or who are erroneously regarded as engaging in such use. Therefore, using this as the basis for a hiring decision could expose the employer to litigation under the ADA, with the potential for significant administrative penalties and compensatory/punitive damage awards.

    Adele L. Abrams is an attorney and safety professional who represents employers and contractors in litigation with OSHA, and provides safety training and consultation to companies across the United States. She can be reached at safetylawyer@aol.com.


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