In an earlier post, we addressed marijuana use and touched on drug testing policies in the workplace. While having a drug testing policy is required of some employers and merely suggested for others, enacting the policy is properly is crucial to the ensuring the company’s employees and clients are safe and that the company is protecting itself from liability as best it can.
Why Test for Drugs and Alcohol in the Workplace?
Drug and alcohol testing can prevent the hiring or continued employment of people in safety-sensitive or security-sensitive positions who may harm themselves or others if using or abusing drugs or alcohol. Some insurance companies may require drug and alcohol testing policies to offer liability insurance policies to businesses. If a business is a certified South Carolina drug-free workplace, it may be eligible for a 5% credit on worker’s compensation insurance premiums. Drug-free workplaces can see a reduction in absenteeism, accidents, theft, and employee turnover.
Who to Test for Drugs in the Workplace?
A drug testing policy must be made clear to all employees in writing and must be administered without discrimination as to race, sex, religion or other protected class. Anyone who is employed could be eligible for drug screening, especially those who carry firearms, who are healthcare workers with direct responsibility for patients’ care, who operate or repair passenger vehicles, or whose primary duty is to drive a vehicle. A business may randomly test for drugs or may test an employee if reasonable suspicion arises that an employee is using or abusing drugs or alcohol. If testing because of a reasonable suspicion, an employer should document specific objective facts that raised their suspicion prior to testing, including:
- A pattern of erratic behavior;
- Direct observation of drug use;
- An arrest or conviction for a drug charge; or
- Information that an employee has caused or contributed to an accident while at work.
How to Test for Drugs in the Workplace
Not just anyone can administer or interpret a drug test. The lab where the sample is taken and tested should be certified by the Substance Abuse and Mental Health Services Administration (SAMHSA) of the US Government. Many laboratories are available for employers, but not all of them are certified or accredited by the SAMHSA. The drug test administered must be an evidentiary test, not a medical test. Positive drug tests should be confirmed by gas chromatography or a more accurate test. The test results must be interpreted by a licensed medical review officer (MRO). A MRO is a physician who interprets and evaluates the employee’s test in conjunction with the employee’s medical history and any other information that may explain a positive test result. A licensed MRO has been trained and certified in drug testing analysis. He or she will verify and approve a certified laboratory drug test result by signing it.
Once a specimen is taken, it is sent to the laboratory for an initial screening. If the results are positive for any substances, then the specimen is tested again (a confirmation test). The confirmation test is then forwarded to the MRO for interpretation, analysis, and approval.
What to Do with the Results of Drug Testing
Drug tests should be kept in an employee’s file for three to five years after they were conducted. Positive drug tests should not be reported or released outside the employee’s file except where required by law. Some workers’ compensation laws require reporting. Otherwise, results of drug tests administered by employers are confidential.
How to Create Policies and Procedures for Drug Testing
To ensure a company is protecting its employees, clients and itself, drug and alcohol testing policies and procedures must follow the law and be specific in their administration and consequences. Contact an experienced employment lawyer at Gignilliat, Savitz & Bettis LLP for counsel in setting up the best policies and procedures for your business.