Risk Management Best Practices For Handling Alcohol And Illicit Drug Exposures

As discussed in previous blogs, employees who use illegal drugs in the workplace are a hazard not only to themselves but to the safety of fellow employees. There are a number of strategies, including pre-employment drug testing, post injury drug testing, and random drug testing, to combat this real danger in the workplace.

The following are best practice procedures your organization should follow. The source of these best practices is the Institute For A Drug-Free Workforce as found in their booklet “Workplace Drug Testing: An Employer’s Development & Implementation Guide.”

• Have a written company policy on illicit drug and alcohol abuse in the workplace and make sure it is communicated and legally enforced;

• Stress that safety in the company’s policy as the primary basis for the drug-testing and drug-abuse prevention program;

• Use drug-testing laboratories that are certified that the Department of Health and Human Services and/or accredited by the College of American Pathologists or the state’s department of health;

• Always perform a confirmation test using a different chemical process before considering a drug test to be “positive” and taking any adverse employment action against an employee or job applicant. GC/MS is the optimum and most common confirmation process used by employers;

• Maintain strict labeling and chain-of-custody procedures for the collection, handling, transportation and storage of specimens used for testing (use of a certified laboratory assures this);

• Maintain the confidentiality of drug-test results so that only those employer representatives with a “need-to-know” have access to the results of a drug test and/or related documents and files;

• Use observed specimen collections only if absolutely necessary in deference to an individual’s privacy interests. Allow employees and job applicants to provide a urine specimen in private without a company representative directly present;

• Require employees and job applicants to leave coats, hats, purses, briefcases, and other such items outside the actual specimen collection site as a hedge against specimen tampering;

• Take further steps at the collection site to minimize the chances of sample alternation. Consider turning off water, or using a bluing agent in the toilets, to help prevent subjects from watering down urine samples. Another important safeguard is the use of “temperature strips” on sample containers to assure that samples match normal body temperatures;

• User a medical review officer to review all “positive” test results and give those who test “positive” the opportunity to provide a valid explanation;

• Test as broadly within a classification of employees or applicants as is reasonable and appropriate. Making exceptions and arbitrary hard-to-justify exclusions to certain groups of employees may invite a legal challenge;

• Include top management in testing programs. Consider testing top management first as a show of “good faith” to the employee population at large;

• Act only according to a written policy that has been fully distributed and explained to employees;

• Use notices regarding drug testing in company employee handbooks, on company bulletin boards, in employee applications, in job advertisements, and by employee recruiters;

• Use threshold levels of illicit drug detection that is both meaningful and legally defensible;

• Stay abreast of state and fede4ral drug-testing laws and requirements to assure that the company’s policy is in full compliance;

• Consider an employee’s or job applicant’s refusal to be drug tested as a “positive.” To do otherwise would make the policy meaningless;

• Use a drug-testing laboratory that has qualified professionals available to serve as expert witnesses if needed;

• Make sure that the drug-testing laboratory engages in comprehensive quality control through regular “blind-testing” of both “positive” and “negative” samples;

• Have the laboratory retain “positive” test samples for evidentiary purposes, freezing such samples and retaining them for a period of at least one year;

• Make sure a significant portion of the original sample is preserved for purposes of confirmatory tests and retests;

• Do not overly rely on drug testing. Recognize that drug testing, in and off itself, does not constitute a drug-abuse prevention program, but rather only one element of a comprehensive strategy to prevent drug abuse in the workplace;

• Do not perform the medical review officer (MRO) function in regard to drug testing job applications prior to extending a conditional offer of employment. To do so is a violation of the ADA;

• Extensively train supervisors and management on the identification of drug problems, drugs and drug paraphernalia, how to react to a workplace drug incident; when and how to refer a situation or confront an employee, “for cause” testing, and the company’s policy and programs;

• Permit job applicants who are denied employment because of a “positive” drug test to reapply after a period of time. Typically employers permit reapplication after a 3-6 month period. To permit reapplication is required by the ADA. As a practical matter most job applicants who are denied employment because of a “positive” drug test do not reapply.

• Terminate the employment of those who adulterate, substitute, misidentify, or otherwise deceive the employer regarding test samples. The same goes with employees who retest “positive” during or after rehabilitation, refuse to be referred for employee assistance or treatment, or do not or cannot successfully complete the employee assistance or treatment program;

• Schedule drug tests during, or immediately before or after a regular work period. Be sure to consider such time as work time for the purposes of compensation and benefits for incumbent employees;

• If unionized, bargain with the union on the issue of drug testing of employees. Note that employers are required to bargain in “good faith,” not to bargain to agreement. Some employers have bargained to impasse and have subsequently implemented their employee drug testing program unilaterally;

• Be sure that company representatives recognize the importance of treating employees and job applicants with dignity and respect their privacy;

• Be sure to test for alcohol especially in regard to “reasonable suspicion” testing when it is believed the employee is under the influence;

• Enforce the company policy consistently. Be prepared to make the same response for a “positive” drug test for a long-term, highly valued employee as for a newly hired employee whose performance is marginal. Inconsistency in enforcement of a company policy on drug-abuse is the number one mistake employers in regard to their substance abuse prevention program.

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