By: Aaron Holland
So, you have started a new venture, or you are expanding your current business to include new employees. That is great news! Now it is time to start deciding how you are going to take care of those employees: healthcare, paid vacation time, and policies that keep you, your employees, and your business safe, secure, and in compliance with all necessary and applicable laws. You may be considering a drug-testing policy to keep employees safe on the job and your business needs in check. Or, you might not want a testing policy but may be in a field that requires one.
Who needs a policy?
There is no federal requirement for the majority of private employers to have a drug-free work environment. Many states, including Pennsylvania, do not have a general drug-testing requirement. However, some states and even local governments do have testing requirements and guidelines that must be followed. Make sure to check with your locality on any guidelines.
Many industries are also subject to drug-testing requirements. For instance, all employees and contractors that work with the Department of Transportation, the Department of Defense, and the Nuclear Regulatory Commission have mandatory specific testing requirements. Safety-sensitive industries, such as trucking, railroads, mass transit, and other transportation industries, are also subject to testing requirements laid out by the Omnibus Transportation Employee Testing Act (discussed below.) Receiving federal funding for a business or project might also subject your company to testing requirements. But outside of these required policies, it is up to you to determine if you need or want a drug-testing policy.
when should i test employees?
Drug-testing in the workplace usually hinges on something occurring: an offer of employment, an incident, a reasonable suspicion, or time elapsing. These four scenarios are the most common drug-testing occurrences, and each comes with their own considerations.
Pre-employment testing is standard in many industries, especially those involving the operation of equipment. If you want a drug-free workplace, this is a viable option. It is important, however, to constrain this policy to only testing after a conditional offer of employment is extended, and not as a condition of applying.
Post-accident testing is the most common drug-testing scenario because it is directly related to the safety of individuals in the workplace. This testing follows a workplace accident or injury. These tests, if part of your policy, should be limited only to incidents where there is a reasonable possibility of drug use as a factor for causing the incident.
Reasonable suspicion testing is the most difficult type of testing to justify. Reasonable suspicion testing hinges on observations from other employees or customers that elicit someone to believe an employee is under the influence of drugs. Those observations may include a notable change in speech and behavior in the workplace. These tests must be administered quickly and without prejudice to provide accurate results.
Periodic or Random testing is self-explanatory. Many industries believe random or periodic testing is beneficial to keep a drug-free workplace. The key with these tests is to be quite clear that the tests are completely random in their assignment and not prejudicial in any way in who is selected or when the person is selected for testing.
what guidelines are there?
There are five major laws that govern what can and cannot be part of your business’s drug-testing policy.
Title VII of the Civil Rights Act of 1964 prohibits discriminatory practices by an employer on the basis of race, religion, sex, color, and national origin. This includes inconsistently testing certain employees on any basis. Without having a strict written policy and effectively training management, your business could be subjected to a Title VII discrimination suit if an employee feels she is being tested unfairly on such a basis.
Drug-Free Workplace Act of 1988 focuses on federal contractors and provides certain regulations for drug-testing policies. This law requires any business that receives $100,000 or more in a federal contract or single grant to test employees for drug use.
Title I of the American Disabilities Act of 1990 (ADA) prohibits employers from discriminating against qualified individuals with a disability. A drug-testing policy should include an allowance for prescribed medications, and managers should inquire about prescribed medications before termination after reviewing a positive drug test.
Regulation from the Occupational Safety and Health Administration (OSHA) includes reporting procedures for occupational injuries and illnesses. The regulation focuses on providing employment that encourages the reporting of injuries. OSHA explains that a post-incident drug-testing policy should only be done if there is a reasonable possibility that drug use was a contributing factor in the incident.
The Omnibus Transportation Employee Testing Act is a federal regulation that provides requirements for safety-sensitive industries. The main focus here is transportation industries, including aviation, railroads, and trucking. Most of these industries are regulated by federal agencies that create these drug-testing requirements, such as the Federal Aviation Administration. If your business falls under one of these industries, you must follow the guidelines set by the individual agencies that govern.
what else does my policy need?
Every drug-testing policy should have robust intervention statements that allow leave for those employees suffering from substance abuse so they may receive treatment. These statements can be part of your drug-testing policy or part of your injury and illness prevention program. Under the ADA, an employer also may not fire, refuse to hire, or refuse to promote any individual who has a history of substance abuse or who enrolls in a treatment program. These statements should be made clear in a drug-testing policy.
And remember, training for all supervisors is a necessity to be proactive in testing policies and to avoid potential lawsuits from discriminatory testing practices.
Lastly, the policy needs to be specific and refrain from being too broad or providing for “blanket” testing when it is not warranted or needed. Every employee should feel secure in knowing when she will be tested, even if it is at random!
Aaron Holland, at the time of this post, is a 2L at Penn State Dickinson Law. He currently serves as Event Coordinator for the Federalist Society and is interested in entrepreneurship law and litigation. Aaron is a devoted husband, father of a one-year-old daughter, and a United States Marine.
Sources:
Occupational Health & Safety, https://ohsonline.com/
Create your Own Drug and Alcohol Testing Policy, American Alliance Drug Testing (2016), https://aadrugtesting.com/services/create-your-own-drug-alcohol-testing-policy/
Federal Laws and Regulations, Substance Abuse and Mental Health Services Administration (Aug. 4, 2020), https://www.samhsa.gov/workplace/legal/federal-laws
https://www.osha.gov/recordkeeping/finalrule/index.html
Photo Sources:
https://transportation-services.regionaldirectory.us/
