As an employer, you have both a right and an obligation to maintain a safe and healthy work environment. Enacting a clear drug testing policy to eliminate workplace substance abuse is an important step toward maintaining a safe work environment. Drug and alcohol testing is regulated by state law and by the Americans with Disabilities Act (ADA) for employers with fifteen (15) or more employees. Below are some recommendations for components that should be included in an effective and ADA compliant drug testing policy.
Your drug testing policy should make clear to employees when they are subject to testing, such as while employees are on the employer’s premises (on or off duty) or while employees are operating employer’s equipment. The policy should also note what type of testing will be used and which employee positions will be subject. For example, you may state that safety-sensitive or security-related positions will be subject to additional testing.
Some important things to remember when crafting your drug testing policy:
- Pre-Employment Testing. Pre-employment testing is permissible under the ADA for detecting illegal drug use only. A test for alcohol is a medical examination and, accordingly, an offer for employment cannot be conditional on passing an alcohol test.
- Reasonable Suspicion. Employees may be required to submit to a drug test if a supervisor has a reasonable suspicion that he or she is working under the influence of drugs or alcohol. In your policy, define the factors that may give rise to a reasonable suspicion, including objective factors, such as an employee’s appearance, speech, and behavior. State clearly that employees taking medication must inform a supervisor if they believe they will be impaired or need a reasonable accommodation to avoid any problems with ADA compliance.
- Periodic or Random Drug Testing. This type of testing is the most intrusive on employees’ rights and should be reserved for employees in security or safety-sensitive positions. If periodic or random drug testing is not job-related and consistent with business necessity, or is enforced in a discriminatory manner, your policy could violate the ADA.
- Post-Incident Testing. Employers may reserve the right to test employees involved following an accident or workplace safety violation.
The consequences of a positive drug test, refusal to submit to a test, or failure to complete a test should be explicitly stated in every drug testing policy. An employee with a history of drug abuse or alcoholism whose current substance abuse affects job performance is not protected under the ADA, and may be disciplined according to your company’s drug testing policy.
Your policy should include the types of discipline to which the employee may be subject for a positive test, including termination. Applicants should understand that any refusal to submit to a pre-employment drug test is an effective withdrawal of the employment application.
Any record related to an employee’s drug test must be treated as a medical record and kept separate from the rest of his or her personnel file if it reveals either the use of a legal prescription drug or a disability. As a best practice, however, employers should keep all drug test results in a separate file from an employee’s personnel file to ensure ADA compliance. Information related to drug tests should be shared with supervisors on a need-to-know basis only for necessary job restrictions and accommodations.
If you have any questions about drug testing in the workplace, or need assistance developing written policies, please contact any of the attorneys at Royal, P.C.