Employer Considerations for Drug Testing, Part 1: Drafting an Employment Drug Screening Policy
Drug screening has become a vital tool to promote a safe working environment and mitigate risk connected to drug-related issues. Countless studies from both the private sector and SAMHSA (DHHS - Substance Abuse and Mental Health Services Administration) have shown that implementing a drug screening program reduces the over-all costs associated with substance abuse including health care costs, absenteeism and lost productivity. While drug screening is a critical step in the hiring process to avoid potential liabilities; administering a drug screening program for pre-hires and employees is a multifaceted task for employers.
In this series of blog posts, I will be listing some considerations for administering a drug screening program. Even if you already have a program in place, the complexity of drug screening demonstrates that it’s always a good idea to go back to the basics, realize what the program is about and what it means to your company. Keep in mind that this series will focus on non-regulated drug screens; and while each consideration is a blog topic on its own, I will break it down to 2 parts: Policy Considerations and Method Considerations. As always, consult with your Legal Counsel when reviewing, creating and implementing your Workplace Drug Testing Program.
Drug Screening Policy Considerations
Federal Requirements – While drug testing required to work in federal agencies, some employers with federal contracts and in certain industries; it is still largely a voluntary employment screening program. This lack of federal standards has driven many non-regulated employers to follow the best practices established by the regulated drug testing world; consider whether the DOT guidelines will work for you too. An important thing to note is that while there may be no federal requirement for drug testing, your program should not violate your employee’s civil rights. Implementation of the program should be fair and non-discriminatory.
State Requirements – Some state statutes address workplace drug testing so make sure your program follows state requirements, paying close attention to whether the statute may only apply to employers within the state or also if the donor is a resident of the state with an out of state employer. These requirements can range from the types of screening that an employer can test for (post-accident tests in Iowa can only be done if the accident resulted in a serious injury or property damage of over $1,000) to the notification requirements for positive results (MD requires donors be notified of positive test results by Certified Mail). There can also be limitations to drug testing, such as in San Francisco, CA where post-accident testing is prohibited. Also for consideration is that, many states offer discounts on Worker’s Compensation insurance to employers that comply with their State’s drug screening acts including AL, FL, GA, ID and VA among other states; and that brings along certain requirements as well.
Expectations - In order to protect your interest as an employer and to promote the spirit of having a drug-free workplace, your policy should clearly state your expectations from your employees and what they can expect from you. In your policy, enumerate the drugs that will be tested, define the process for screening, identify the method for testing, outline the circumstances for which testing may occur and of course, state the repercussions for a non-negative test.
Result Interpretations - Your policy should clearly state employer actions for drug screening results. What would you do if you had a Negative, Positive, Cancelled, or an Adulterated result? Something of particular importance is considering what you should do when you get a Negative Dilute result. This result states that there were no drugs found above the cut-off levels, however the donor’s creatinine level is lower than expected in the urine sample. Many employers struggle with this as it does raise the question of whether the dilution was on purpose yet there is no evidence of a donor tampering with a result. Some employers consider this as a positive, while some employers automatically retest donors with a Negative Dilute result. Whatever route you decide to take on how you interpret results, make sure that you discuss this first with your Legal Counsel.
Once you have a policy in place, make sure that you inform your employees and new hires about its existence and enforcement. SAMHSA recommends that employees are notified anywhere between 30-60 days before the policy is first enforced. Take this time to discuss the policy details with your employees and answer any of their questions. It’s also a great time to use this period to train supervisors and other officials who will be making decisions on behalf of your company regarding details of the policy.
If you would like more information about creating a workplace testing program, the Substance Abuse and Mental Health Services Administration (SAMHSA) provides a Drug-Free Workplace Kit that includes guidelines into workplace drug testing. For a copy of the kit, click here.
The policy is the first step in workplace drug screening. Our next blog post will feature considerations for enforcing your program and the available options to you as the employer.