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Drug testing employees has been a common practice for many years, but the evolution of workplace drug testing is changing rapidly due to new laws and technologies becoming available. Adding to that, employers are facing more challenges figuring out the best solution to manage drug testing of remote employees and to hire employees at a moment’s notice to ensure their business continues to operate without undue delay.
To stay compliant with changing laws and the adoption of new technologies like proctored testing, and sample types, such as oral fluid testing, a written policy is the first line of defense for employers and establishes the program expectations for the employees. The policy sets forth the company’s rules and procedures and can be utilized to justify disciplinary decisions. When those decisions are challenged, the policy will be front and center.
There are many critical parts to a policy and the language should be customized to fit the program objectives. However, a written drug free policy should contain, at a minimum, the following important elements.
The Applicable Laws
Employers should be aware of the different types of state and federal laws and how they affect the testing program. Employers who understand the different requirements and build them into their policy benefit greatly both legally and economically by having a compliant testing policy. As state laws change, which happens very frequently today, companies need to be aware of these changes to determine if and how they impact their operations and have those updates made in a timely fashion, so they are not caught off guard and become subject to a potentially costly lawsuit and liability.
The Program Objectives
The most common reason is safety—the safety of employees, clients, and the public while protecting the company’s property, equipment, operations, and profitability. Also, one needs to consider if there is interest in establishing a program that meets the requirements to disqualify individuals from receiving benefits for workers’ compensation and unemployment purposes, or if there a goal to obtain a discount on workers’ compensation premiums. All this needs to be spelled out and included in the policy.
Who is Covered Under the Program?
This determination should be based on the types of jobs you offer and the objectives of your policy. Employers may elect to include all employees or limit testing to job applicants or employees with certain job functions, such as, safety sensitive positions only. Also, one needs to consider if remote, temporary, contracted, or seasonal employees will be subject to the testing program. This should be clearly spelled out in the policy to leave out any question as to who must follow the testing rules.
Specimens for Testing
Depending on the reasons behind your drug testing program, a given specimen type may fit more logically than another. For example, oral fluid testing covers very recent substance use, is very difficult to subvert and detects parent marijuana, which is now important in states like CA & WA, while urine and hair have a longer window of detection more indicative of past use. As laws and regulations evolve, employers are shifting their interest from traditional single specimen programs to a combination of different specimens to keep up with the evolution of workplace drug testing and the nature of the work they perform. There a several aspects to take into consideration when evaluating specimen options such as state laws, testing panels, and timing to name a few.
Policy Prohibition
While it may be obvious that all illegal drug use on company time should be prohibited, what will the policy say concerning off-duty use, criminal drug convictions, and being at work under the influence/impaired from illegal drugs even though the use took place elsewhere? What about the misuse of prescription and over-the-counter medications? The prohibitions will provide clear direction for employees on what is or is not acceptable behaviors.
Testing Methodology
Today, there is traditional laboratory-based testing using urine, oral fluid or hair, which involves shipment of samples to a laboratory and waiting several days for results, however, when more immediate results are required for fast hiring or post-accident situations, for example, you may wish to utilize instant/Point of Care Testing (POCT) products. Keep in mind, there are numerous instant testing devices to choose from and some are urine based while others are oral fluid that have different labeling in terms of being FDA cleared, Employment and Insurance use only, etc.. These are all important distinctions that need to be considered based on the applicable laws in the state in which you operate. If alcohol testing is included in the testing program, there are instant breath and saliva testing devices as well as laboratory-based testing methodologies. Which will you use and are they adequately covered in your policy?
Drug and Alcohol Testing Procedures
Testing procedures are important for employers to develop and have spelled out in their policy to ensure all proper practices are followed to protect the interests of the company and their employees. On the other hand, addressing more detailed operational procedures and guidelines for supervisors may be more extensive, and in the interest of not cluttering the policy, it may be prudent to establish a separate procedure document for these but link it through the policy.
Medical/Recreational Marijuana
Determine if marijuana will be permitted in the workplace or will it be subject to disciplinary actions? Although each state law varies, generally it is not required to permit drug use in the workplace or tolerate employees who report to work under the influence. On the other hand, there are nuances that must be followed, and your policy should ensure proper practices and procedures are followed.
Summary
Today we live in an ever-changing world of state laws, technologies, methods of substance abuse testing as well as associated risks of legal actions against companies. A company that stays on top of these changes and addresses them on an annual basis will be far safer, in many ways, than a company that does not. So, if you do not have a written policy or have not dusted your existing policy off for many years, it is probably time to that for your company and stakeholders who are counting on you to cover that base.
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