Implementing a Drug and Alcohol Testing Program
Define the Scope of Your Testing Policy
A testing program should be crafted with the context of your business in mind. As a general matter, employers choosing to implement a testing program should make sure the program is clearly outlined in a written policy and acknowledged by covered employees.
The policy itself should clearly delineate prohibited conduct and state the consequences of violations and noncompliance. More importantly it is critical that any policy be applied and enforced in a consistent and nondiscriminatory manner. This will likely require that management, supervisors or persons designated to enforce your testing program be properly trained. At the outset, employers should clearly define the scope of their program by determining:
- Who will be tested
- When testing will be conducted
- Which drugs will be screened
- How testing will be conducted
Who will be tested?
This determination should be based upon the context of your business and the objectives of your policy. Employers may elect to include all staff or limit testing to job applicants or employees with certain job functions. For example, the DOT regulations require testing for employees who perform “safety sensitive” functions, i.e., transit operators, employees required to hold a commercial driver’s license, transit dispatchers, mechanics and armed security personnel. Private employers may wish to require testing for any motor vehicle operators, security personnel, heavy equipment or complex machinery operators, food and beverage handlers, or cashiers.
When will testing be conducted?
- Pre-Employment. This type of testing is required as a condition of employment. It occurs after a conditional offer of employment has been extended. The applicant agrees to be tested as a condition of employment, understanding that the offer will be withdrawn if the test yields a positive result.
- Periodic. The employer requires testing on a pre-determined periodic basis. Such tests often arise where an employee is also required to submit to an annual physical as a condition of employment. The drug test is usually administered in conjunction with the physical exam. The drawback to this type of testing is that the employee has advance notice and can prepare for the test by discontinuing his/her drug use beforehand.
- Random. Involves indiscriminant and unannounced testing based on a computer generated selection process. Random testing can have a powerful deterrent effect, but is more likely to be met with resistance by employees.
- Post-Accident. Where an incident or occurrence triggers mandatory testing. Usually arises in connection with a motor vehicle accident or an onsite injury. Employers should establish an objective criterion for incidents that will trigger testing. Triggering incidents may include: fatalities; injuries requiring emergency medical treatment; and damage to vehicles or property above a threshold amount.
- Reasonable Suspicion. Sometimes referred to as “probable cause” testing, this occurs when a supervisor or manager documents observable signs or symptoms that lead them to reasonably believe an employee has used a prohibited drug/and or engaged in alcohol misuse. The observable signs or symptoms may be based on appearance, behavior, speech or body odors. Because judgment and discretion will come into play, it is important that supervisors be trained to detect signs of drug or alcohol use.
Which drugs or substances will be screened?
The National Institute for Drug Abuse has identified five “illegal” substances for purposes of federal drug testing programs. Sometimes referred to as the “NIDA-5,” those substances include:
- Amphetamines (methamphetamine)
- Cannabinoids (marijuana, hashish, THC)
- Cocaine (benzoylecognine, cocaethylene)
- Opiates (heroin, morphine, opium, codeine)
- Phencyclidine (PCP)
How will tests be conducted?
Employers may wish to utilize a testing laboratory that has been certified pursuant to Mandatory Guidelines. Generally, drug testing may be performed by collecting urine, hair, saliva, sweat or blood. Urine testing is the most widely utilized method. It has a fairly long window of detection (2-3 days) and is less expensive than other forms of testing. The only drawback is that urine samples can be adulterated. Alcohol testing may be performed by blood, saliva, or breath analysis. While blood is believed to be the most accurate form of alcohol testing, an evidentiary breath testing device (EBT) is method preferred by most employers.
Consider the Consequences: “Zero Tolerance” vs. “Second Chance”
An effective drug testing program must set forth consequences for noncompliance. Such consequences should be clearly articulated in a written policy and enforced by the employer in a consistent and nondiscriminatory manner. Otherwise, your efforts to develop a testing program may amount to an exercise in futility. Some employers may elect to take the “zero tolerance” approach of immediate termination. Other employers may implement a “second chance” policy that allows an employee to return upon the satisfactory completion of a substance abuse program. Employers choosing this approach tend to also require a second pre-return drug test (with a negative result) as a condition of the employee’s return.
The nature and context of your business should be factored into discerning what consequences to incorporate into your drug testing policy. In any event, those consequences should be clearly outlined in your policy and enforced in a consistent manner.
Communication is Critical
Employers should not expect that all employees will greet their drug testing policy with enthusiasm. However, efforts should be made to introduce a new testing program to employees well in advance of implementation. This can be accomplished though staff meetings and small group settings. Employers should be prepared to respond to a variety of questions which may range from specimen collection procedures and testing accuracy to disciplinary measures and privacy concerns.
A new testing policy may also be introduced in conjunction with a substance abuse awareness or education program. This may also lower anxiety and misgivings among employees. In fact, there appears to be an increasing acceptance of drug testing among employees where safety is at issue. A recent Gallup survey revealed that a clear majority of employees favored drug testing for those employed in occupations that had a direct responsibility for the safety of others.
The following is an online resource, which may also prove useful: