Compliance Perspectives: The 12 Things to Include in Your Drug & Alcohol Testing Policy

WHAT’S AT STAKE
No! No! No! The truth is that state laws on marijuana use and possession have little to no direct impact on workplace drug policies and the testing methods used to enforce them. After all, alcohol use is legal but that doesn’t mean employees can’t be tested for alcohol use. All marijuana legalization does is, at least according to studies, is increase use and make testing even more important than it is now. So, if your lab doesn’t have an alcohol and drug testing policy, now is the perfect time to create one. And if it does already have a policy, now is the perfect time to vet it.

IS TESTING LEGAL?
While testing is highly controversial, there are three things on which all sides agree:

• Workplace drug and alcohol use and impairment is a safety hazard;
• Labs and other employers need clear policies to prevent employees from using or being impaired at work; and
• Testing is one of if not the best ways to enforce those policies.

Another fact that’s hard to dispute is that employees and unions hate testing and will go to court or arbitration to contest it. Heading into litigation, unions also have some big legal advantages, including the fact that:

• Testing is highly privacy intrusive;
• Drug and alcohol addiction (although not casual use) is a disability requiring accommodations under the ADA and state discrimination laws; and
• Employers bear the burden of justifying their testing policies as a needed and unavoidable safety measure.

The legality of a particular testing policy depends on a number of factors including:

• What’s tested for, i.e., drugs or alcohol;
• Who’s tested, e.g., all employees or safety-sensitive ones; and
• What’s the basis for performing a test, i.e., pre-employment, post-incident/for cause or at random.

While laws vary by state, the rules follow roughly the same general patterns:

Legality of Employee Drugs & Alcohol Testing

* Pre-employment testing of safety-sensitive employees typically permitted

THE 12 THINGS TO INCLUDE IN YOUR TESTING POLICY

Knowing how particular types of testing may be justified is just the starting point. The windows for justification are extremely tight and your lab won’t squeeze into any of them if it doesn’t have the right testing policy. (Click here for a Checklist of general criteria used by courts and arbitrators to evaluate the legality of testing policies.) 

Note that while the Insider’s Model Testing Policy is designed as a standalone, you can also incorporate the testing policy into a larger workplace drug and alcohol use policy. In either case, there are 12 things you should include in the policy.

1. Policy Statement

Like many employers do, you may want to state that your lab has a zero tolerance drug and alcohol policy. But while “zero tolerance” may be the right principle, just using the phrase doesn’t get you over the legal obstacles standing in the way of enforcing a testing policy. It’s also generally advisable to phrase your policy as a workplace safety rather than a moral or even legal imperative (especially in states where marijuana is legalized) [Policy, Sec. 1].

2. Statement of Purpose

Acknowledge that testing is intrusive but state that it’s essential to enforcing your zero tolerance policy and its workplace safety objective [Policy, Sec. 2].

3. Policy Scope

Make sure the policy is balanced in scope. On the one hand, testing should generally be limited to safety-sensitive employees; on the other hand, the policy should apply broadly to any and all individuals that perform safety-sensitive jobs regardless of their employment status, including employees of contractors and applicants for safety-sensitive jobs with your lab [Policy, Sec. 3].

4. Employees’ Duties

If the testing policy is freestanding, you may want to restate or refer to employees’ duties under lab’s drug and alcohol use policy, including coming to work sober and fit for duty and remaining in that state at all times while on duty [Policy, Sec. 5].

5. Bases for Testing 

The meat of the policy are the rules for different bases of drug and alcohol testing, including:

• Pre-employment testing: Mandatory for applicants who receive offers for safety-sensitive jobs [Policy, Sec. 6.1];
• For-cause testing: Allowed when there’s grounds for reasonable suspicion of impairment with such grounds specifically listed [Policy, Sec. 6.2];
• Post-incident testing: A form of for-cause testing allowed after safety incidents and near misses [Policy, Sec. 6.3];
• Random testing: Permitted only for safety-sensitive employees in narrow safety-related circumstances [Policy, Sec. 6.4];
• Post-Rehabilitation Testing: May be required for employees that test positive who are offered the opportunity for rehab in lieu of termination [Policy, Sec. 6.5]; and
• Scheduled Periodic Testing: May be required as part of a fitness for duty medical exam [Policy, Sec. 6.6].

6. Testing Procedures

There are six crucial procedural issues you need to address in your testing policy:

• How job applicants and employees give their consent to be tested [Policy, Sec. 7.1];
• How samples are collected and who can collect them [Policy, Sec. 7.2];
• The controls in place to ensure the integrity of the sample from collection to transporting for actual testing [Policy, Sec. 7.3];
• The methods used to confirm initial positive test results [Policy, Sec. 7.4];
• The criteria for a positive result—which should generally track the applicable regulatory limit apply to the tested-for substance tested, e.g., BAC for alcohol [Policy, Sec. 7.5]; and
• Procedures for retesting and appeals after positive results [Policy, Sec. 7.6].

7. Privacy of Test Results

Acknowledge that test results are privacy-protected information that you’ll keep secure and refrain from using except as allowed or required by law. Also indicate that test records are lab property but that you’ll make them available for inspection and copying as required by law [Policy, Sec. 8].

8. Violations

Explain that violations include not just testing positive but tampering or attempting to tamper with samples and/or improperly refusing to submit to testing in the first place [Policy, Sec. 9].

9. Consequences of Violations

Make it clear that employees who commit violations are subject to discipline up to and including termination in accordance with your lab’s disciplinary policies and procedures. In addition, reserve your right to revoke job offers to job applicants who test positive or commit violations before starting work [Policy Sec. 10].

10. Rehab Rather than Termination

Reserve your right to offer current employees who test positive the opportunity to enter a last chance agreement in lieu of immediate discipline or termination. Typically, the employee is put on administrative leave and allowed to return to work provided they successfully complete a rehab program, which usually involves regular testing [Policy, Sec. 11].

11. Acknowledgment of Employee Accommodation Rights

To insulate against liability risks for discrimination, acknowledge that drug and alcohol addiction are disabilities under the ADA and state discrimination laws and state that you’ll provide reasonable accommodations to employees and applicants with addictions up to the point of undue hardship [Policy, Sec. 12].

12. Attach Consent Form

Last but not least, attach a copy of the form you require job applicants and employees to sign to consent to testing as an Exhibit to your policy [Policy, Exhibit A].