Page 88 - Occupational Health & Safety, June 2018

D r u g & A l c o h o l Te s t i n g
Top Ten Mistakes Employers Make When Conducting Workplace Drug and Alcohol Testing
Many workplace drug and alcohol testing policies do not define “refusing to test” and provide no disciplinary consequences for it. This is a serious mistake.
BY KATHRYN J. RUSSO
84 Occupational Health & Safety | JUNE 2018
www.ohsonline.com
Reprinted in partnership with the Drug & Alcohol Test- ing Industry Association/ DATIA focus, an industry association representing the full aspect of drug free and
Asafe workplaces. datia.org
fter many years advising employers about drug and alcohol testing, I have observed certain mistakes that are frequently made in the course of addressing these issues.
Many of these errors could have been avoided through the preparation of a thorough drug and alcohol test- ing policy that complies with applicable laws, as well as some training. Here, in no particular order, are the most common mistakes employers make when ad- ministering their drug and alcohol testing programs:
1. Applying DOT requirements to non-DOT- regulated employees. The U.S. Department of Trans- portation’s drug and alcohol testing regulations apply to a very specific group of employees and no one else. Employers sometimes believe that they can take a DOT drug and alcohol testing policy and apply it to everyone in the organization. This is a serious mis- take because drug and alcohol testing of non-DOT- regulated employees is instead governed by applicable state and local laws. Those laws may prohibit certain types of testing that are required by DOT. Some state and local drug testing laws provide aggrieved employ- ees with a private right of action to sue their employ- ers, along with significant financial remedies.
2. Not realizing that state and local drug testing laws vary widely. Some states and cities have very specific drug and alcohol testing laws. It is critical for employers to become familiar with the state and local testing laws applicable to their workforce. Some juris- dictions regulate the types of testing that may be con- ducted, the specimens and drugs that may be tested, the requirements for notifying employees of positive test results, as well as the disciplinary consequences that may be imposed for testing positive. (Five states do not permit employers to fire an employee who tests positive for the first time.)
3. Not having a written policy. Many states do not have drug testing laws, and employers in those states often believe it is not necessary to have a written drug testing policy (for non-DOT-regulated employees).
But a written testing policy is a best practice in all states. In the policy, the employer should put appli- cants and employees on notice as to the types of test- ing that will be required, the types of conduct that are prohibited, and the disciplinary consequences for re- fusing to test and testing positive, among other things. Doing so helps enormously in the event that there is litigation involving a drug or alcohol test result.
4. Having a written policy that is vague. Some employers like their drug and alcohol testing policies to be as brief as possible, and may even say something like “the Company reserves the right to conduct drug and alcohol testing in its sole discretion.” Such a vague policy leaves many questions unanswered, such as:
What types of tests will be conducted? What speci- mens will be tested? What happens if a test result is negative dilute? What happens if the employee refuses to test or tests positive?
As discussed above, the better practice is to have a clearly written testing policy that complies with all applicable state and local laws and that answers all questions that employees might have about the test- ing process and procedures. Then, get all employees to sign a policy receipt showing that they received a copy of the policy and understand its consequences.
5. Applying inconsistent disciplinary conse- quences for positive test results. Sometimes employ- ers want the ability to take “disciplinary action up to and including termination” for a positive drug or al- cohol test result. They may want the ability to retain long-term, loyal employees while firing others. Al- though this practice may appear reasonable, employ- ers who do this must examine their practices care- fully to ensure that they are not unwittingly creating grounds for potential discrimination lawsuits.
For example, if the employees who are terminated tend to be people of color and those who are retained tend to be white, there may be a basis for a race dis- crimination claim.
6. Failing to conduct reasonable suspicion tests immediately. Reasonable suspicion tests must be conducted as soon as there is a suspicion to test. Em- ployers sometimes wait too long because they are busy doing other things or because they are conducting a factual investigation. But alcohol metabolizes in the