Screening new employees for drugs is usually a cut-and-dried procedure for employers when it comes to laws regulating its implementation. But, what if a drug test is pursued after a major incident or injury in the workplace?
The first thing to note about screening after an incident occurs is that federal and state laws vary from each other. In fact, state laws are usually the point of reference because the federal laws are usually narrow in scope.
The one federal law that is absolute requires drug testing for all public employees who work in energy or transportation-related services that involve the public’s safety. However, regarding random testing, often performed after an incident in which drug or alcohol abuse is suspected, there are federal agencies that invoke more definitive restrictions, most notably the Occupational Safety and Health Administration (OSHA).
The federal government’s purview greatly expands if civil liberties and rights must be protected. It’s the same in the case of random testing, despite the narrow scope of the various federal acts in place. For example, OSHA has recently indicated it will begin scrutinizing companies’ use of post-incident drug testing more closely to make sure employees’ rights are not infringed upon.
Privacy issues and the rights of citizens have long been the concern of the American Civil Liberties Union (ACLU), which is not a governmental entity but certainly an influential watchdog, especially concerning court cases.
Given such an undefined backdrop for conducting random or post-incident drug tests, any human resources department should consider the laws in a constant state of flux, hinging on court rulings as they evolve.
Although the playing field shifts, there are steps employers can take to keep themselves in bounds when suspecting an on-site accident occurred due to employee substance abuse.
Refer to State Laws
The state(s) in which you conduct your business should be your first point of reference when wanting to randomly test a current employee. In some states, blanket drug tests on all employees cannot be conducted. Such a test must be administered only on an individual when there is good reason to believe he/she was using drugs when the incident occurred.
There are some states, such as Michigan, that do not have laws regarding drug testing, so the few federal edicts are left to guide employers in Michigan. The Great Lakes State has company, as twenty other states lack drug-testing statutes, too.
Determining Reasonable Suspicion
So, what does “good reason to believe” constitute? The words themselves hint of ambiguity and broad interpretation, to say the least. But, an employer is standing on fairly firm ground if he/she demonstrates any of following:
–Direct observation of drug use or its physical symptoms (i.e., slurred speech, extra agitated or lethargic behavior, lack of coordination, inability to answer simple questions)
–Significant decline in an employee’s work performance or erratic, abnormal behaviors
–An independently substantiated report of the employee’s drug use by a reliable, credible source
–Evidence the employee has tampered with drug test results
–Evidence the employee has used, possessed, sold, solicited, or distributed drugs at work
–Employee was given notice before the test was administered
Ensure Your Procedures Are Verified
Some states specifically detail the scientific procedures to which drug testing must adhere. Check your state’s laws to see what is required of your business and the type of screening recommended (i.e., urine, saliva, blood). Some states require employers to distribute written policies on drug testing and rehabilitation. Again, states void of drug-testing laws, such as Michigan, can test even without advanced notice.
Many states require employers to maintain a counseling resource or outreach program reference in order to gain permission to test employees randomly. It is always a good idea for human resources departments to maintain such references and resources.
Work-related injuries are usually fraught with possibilities when it comes to lawsuits and claims. For more about them, refer to OSHA, which maintains a fully informative website.
March 30, 2017
Article Compliance HR Professionals Under 50 Employees