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Why you need Employee Drug Testing
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
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
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
Key components of a drug-screening 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.
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:
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
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:
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
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,
Legal issues arising from on-the-job drug
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
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
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 email@example.com.
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