The P's and Q's (and should yous?) of drug testing in the workplace

On-the-job use of illegal drugs and alcohol can be extremely costly for employers and employees. Not only does it increase the likelihood of absenteeism, tardiness and poor performance, it also increases the likelihood of workplace accidents and injuries. In addition, drug and alcohol use negatively can affect your workplace by perpetuating attitude and morale problems. Addressing these issues especially is important for roofing contractors given the safety hazards associated with roofing work.

To minimize these risks, adopt a substance-abuse policy prohibiting on-the-job use of illegal drugs and alcohol. Such policies should specify what is prohibited (in terms of the types of substances—legal and illegal—and consequences of violating the policy) and provide for testing to enforce the policy's provisions and/or deter and detect the use of illegal drugs and alcohol. Although the laws applicable to such testing vary among states and require consultation with an attorney familiar with such laws before any policy is implemented, there are certain terms and provisions with which you must be familiar before instituting a policy with appropriate testing provisions.

Is a policy required?

A threshold question for some contractors is whether a substance-abuse policy and/or testing is required. With a few exceptions (putting aside any specific requirements of particular state laws, clients or contracts), roofing contractors are not required to adopt or maintain a substance-abuse policy or subject employees or applicants to drug and alcohol testing.

One exception applies to contractors who perform work for the federal government or its various agencies or branches. The federal Drug-Free Workplace Act of 1988 requires recipients of federal contracts worth at least $25,000 to:

  • Certify they will provide drug-free workplaces
  • Provide each employee with a notice that prohibits and states the discipline applicable to any manufacture, distribution, dispensation, possession or use of a controlled substance in the workplace
  • Establish ongoing drug-free awareness programs to inform employees of the dangers of drug abuse, availability of counseling programs, employer's policy against drug use and penalties for violations
  • Require employees to report convictions of any workplace-related criminal drug violation within five calendar days, which then must be reported by the employer to the federal contracting agency

The act does not apply to subcontractors or require testing. It also does not require any steps with regard to alcohol use.

Another exception is the Omnibus Transportation Employee Testing Act of 1991, which is administered by the U.S. Department of Transportation (DOT) and requires specified drug and alcohol testing for employees who operate commercial motor vehicles (generally vehicles that exceed 26,001 pounds and/or transport 16 or more passengers or hazardous materials). DOT requires pre-employment testing of such operators for illegal drugs only and post-accident, reasonable suspicion, random, return-to-duty and follow-up testing for illegal drugs and alcohol under certain detailed protocols. Contractors who employ operators of commercial motor vehicles must ensure their policies and procedures comply with these protocols.

Aside from these exceptions and any generated by state law, specific contract or work order, you are not required to have a substance-abuse policy or conduct drug or alcohol testing. But that is not to say having a policy and conducting testing is not a good idea. A good policy backed by meaningful testing can help reduce many risks and may prevent costly, devastating accidents and injuries. In some states, having a substance-abuse policy and testing protocol can save you money by generating rebates on workers' compensation insurance premiums.

The key is to take the process step by step, focusing not just on the testing to be performed but your substance-abuse program as a whole.

Step one: Adopting a policy

Before administering your first test or getting into a situation in which you think a test may be necessary, take time to develop a comprehensive policy concerning substance abuse in the workplace. Developing a policy upfront allows you to develop your views and limitations in a setting that is not emotionally charged in the face of a violation or suspected drug or alcohol use and is not influenced (positively or negatively) by the individual suspected of using in the workplace. It also allows better reflection on the applicable legal requirements and gives you time to train your supervisors and staff accordingly.

Like all policies, your substance-abuse policy should be written in language easily understood by all employees. The policy should address at a minimum:

  • What constitutes illegal drugs and alcohol, remembering the Americans with Disabilities Act (ADA) does not allow you to outlaw the use of all drugs in the workplace or require employees to report all prescription drugs they are taking but does allow you to outlaw drugs taken contrary to a legal prescription and require reporting of prescription drugs that may affect safety or performance
  • What activities are prohibited (such as sale, use, possession, manufacture, dispensation, distribution, solicitation) and where (on-site, off-site, during working hours)
  • What exceptions apply (for example, for work-related social events or client entertainment)
  • The specific circumstances under which testing will be required and types of testing that will be used
  • Where the testing will be conducted, which should be off-site at an approved laboratory (thorny legal issues apply to on-site, employer-conducted testing)
  • When a test will be deemed positive, which only should be after a confirmatory test is conducted with a positive result
  • The consequences of failing or refusing a test
  • Any rights accorded employees, such as appeal procedures, last-chance agreements, or referrals to an employee assistance program or counseling and under what circumstances
  • What consequences will not be excused (other policy violations)

The policy also should set forth any special interactions with other policies and reserve your right to search for drugs or alcohol anywhere on your premises or work sites, including in any containers or vehicles at work sites; this will eliminate any privacy rights employees may think they have with regard to containers or vehicles on such sites.

Although not in the policy per se, you should address any procedures necessary to give effect to the policy. For example, if your work force is unionized, you must take the necessary steps to enact a new policy or change any existing policy. Drug and alcohol testing is a mandatory subject of bargaining, and such policies require conversation with the union before enactment. Furthermore, regardless of whether your work force is unionized, you should be sure to have specific information as to what testing facilities will be used and what levels of drugs or alcohol will constitute a positive test.

You also should specify procedures and safeguards for maintaining all testing records confidentially, separate from ordinary personnel file records, and plan for proper implementation. Inform employees about the policy's provisions, and train supervisors to identify the warning signs of drug and alcohol use and properly document and address suspected use.

As with any other policy, a substance-abuse policy must be enforced consistently. The same terms, conditions and consequences must apply to everyone equally—regardless of who they are—to avoid any allegations of discrimination or retaliation.

Step two: deciding the test

The main component of any substance-abuse policy you enact will necessarily relate to what, if any, testing you decide to perform and under what circumstances. Testing generally is viewed by employers as the best means to enforce a substance-abuse policy. Testing also is the area that is most highly regulated by law and varies the most as to what is permitted.

There are many types of testing to consider—all or none of which may be incorporated into a substance-abuse policy.

Pre-employment testing is hailed by many as the best use of drug testing dollars because it gives you the opportunity to weed out users before they set foot on a work site. Most states permit this type of testing. ADA also permits pre-employment testing at any time—even before a conditional job offer is made—as long as it is limited to illegal drug use and does not screen for legal prescription drugs or alcohol.

If alcohol is included in the screen, the screen must be conducted post-offer and ADA's procedures regarding medical examinations must be followed. This requires the position in question to support such testing (such as for safety reasons), and the job offer can be withdrawn only after consideration of potential reasonable accommodation (such as time off for rehabilitation or treatment) and the need for such withdrawal to preserve workplace safety.

Most states also allow employers to conduct "reasonable suspicion" testing. As the name implies, this type of testing occurs when an employer has a reasonable suspicion an employee is using or under the influence of illegal drugs or alcohol in the workplace. Although such a suspicion may be based on the suspicions or observations of just one person, testing in such cases is most defensible when the suspicion is shared by more than one person (preferably managers), each of whom observed the suspicious behaviors or circumstances (odors, disheveled appearances, bloodshot eyes, slurred speech, dazed look, etc.) firsthand.

Some states go even further to require not just that a manager or two observe the circumstances but also that they be specially trained to identify signs of illegal drug and alcohol use. You should determine whether this is required and be sure to have such eyewitness accounts to support any required testing.

Post-accident testing occurs when an employee has been involved in a work-related accident. Policies that provide for post-accident testing should consider whether testing will occur after all accidents, which often presents an impossible standard given that even something as minor as a trip or a small cut could be considered an "accident," or only after accidents netting a certain level of injury or property damage, which is the more typical provision.

In some states, post-accident testing is permitted only if an accident occurs under circumstances that give rise to a "reasonable suspicion" of illegal drug or alcohol use. In those states, generalities requiring a certain level of injury or property damage are not sufficient to permit testing.

Random testing is the most problematic type of testing. There are a number of different concerns associated with such testing.

First, if such testing concerns alcohol and illegal drug use, the testing must be based on a particular safety concern relating to the job in question. This is because an alcohol test is considered to be a medical test under ADA (a test for illegal drugs is not). Therefore, such testing should be applied only to positions in which an employee, if impaired, would pose a threat to his or another person's safety. By way of example, such testing likely would be appropriate for individuals working at a job site, handling chemicals and equipment, and climbing ladders and scaffolding. The testing would not be appropriate for an individual performing only office or administrative work. The testing of strictly clerical individuals should be left to include only random testing of illegal drugs or be limited to testing for some other reason, such as reasonable suspicion or post-accident testing.

Second, assuming you sort out whether the random testing can include illegal drugs and alcohol or just illegal drugs, you also must consider whether you are situated in a state or city that restricts the terms by which employees are chosen for random testing. Some states (such as Connecticut, Massachusetts and New Jersey) and even some cities (such as San Francisco) allow random testing only for people employed in "safety-sensitive positions," a category of jobs that is quite narrowly drawn. Such limitations are premised on the notion that random testing otherwise is an unnecessary and unwarranted intrusion into employees' private lives. Although roofing workers and others working directly on roofing projects likely will qualify, it is worth checking the applicable laws and regulations to be sure.

Other states restrict how employees "randomly" are selected for testing. In Iowa, for example, employees must be selected for random testing by a process administered by an outside entity using a computer-generated randomization process. This restriction is intended to remove the employer from the process to ensure employees truly are selected at random and not based on any impermissible considerations or unfounded suspicions.

Third, employers who use random testing should ensure the process contains controls to filter out false positives based on lawful activities. In other words, limits should be set to target current use, not past use, and the testing facility should use questionnaires that screen for recent use of substances that might produce a false positive. Although this should be done with all testing, it is of particular concern with random testing given the lack of other circumstances that might establish or confirm suspicions of use.

Periodic testing occurs at regular intervals. You may decide to test all employees in specified positions annually or during some other time frame. Such testing generally is lawful as long as employees are notified in advance of the time frames—not the specific dates—during which testing will occur and employers are mindful of the caveats applicable to random testing. Those same caveats and limitations generally apply with some states and cities prohibiting such testing or limiting it to safety-sensitive positions and taking special care when the test encompasses alcohol and illegal drug use.

Indeed, with regard to the concern with periodic alcohol testing, the Equal Employment Opportunity Commission has cautioned that in addition to considering the positions and safety concerns toward which testing is targeted, employers also must consider the frequency of the testing to ensure testing is not being used to harass, intimidate or retaliate against employees. Furthermore, employers must be able to show testing is being or has been instituted to address safety concerns and not to follow up on an employee who has completed rehabilitation or who an employer believes is in need of rehabilitation. Such concerns may not be addressed under the cloak of indiscriminate periodic (or random) testing.

The final type of testing occurs pursuant to a last-chance agreement, which is entered with an employee who has tested positive for illegal drugs or alcohol and is being given a last chance to perform without using or being under the influence of such substances. Such agreements generally are accepted as being appropriate workplace tools. But the agreements should specify the type of testing that will occur, duration or frequency of such testing (even if random) and period of time during which the agreement will be in effect (usually a year). Such agreements also should specify the consequences of violating the agreement or testing positive (generally termination).

Do testing methods matter?

Once your policy is in place and you have decided when and under what circumstances testing will occur, you must answer one final question: What testing methods will you employ? This is a critical question many employers forget to answer.

In most states, employers have great latitude in terms of the types of testing they can conduct, such as saliva, urine, hair and blood. But some states prohibit certain types of testing because the tests are considered too intrusive.

As a general rule, urine testing is the most widely accepted, and blood testing (for obvious reasons) is the most widely prohibited. You must consider state and local laws to determine what testing is permitted for your employees.

Testing for illegal drugs and alcohol provides you with a means to make your workplace safer and protect your business from productivity, attendance, attitude and morale problems that often accompany employee drug and alcohol use. It provides critical backup for policies addressing the presence of such substances in the workplace. The key is to do your legwork upfront to ensure any testing conducted complies with applicable federal, state and local laws and best practices.

Victoria L. Donati and Jason C. Kim are partners in the employment law group with the Chicago-based law firm Neal, Gerber & Eisenberg LLP.


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