A clear, well-defined drug testing policy can protect your company from lawsuits. Companies can conduct random tests in many states if they follow specific guidelines.
Alertness and sobriety are critical to safety-sensitive jobs such as train engineers, airline pilots, and truck drivers. Drug tests can help ensure those employees are sober and unimpaired at work.
Legal Issues
Drug testing laws vary by state, but in general, employers can implement a random drug testing program if they follow the specific requirements of the law. It usually involves drafting a company policy, describing the process for selecting and notifying employees, and outlining which drugs are to be tested and the percentage of employees that will undergo testing each quarter.
Companies should be careful not to single out employees for drug tests based on the appearance of signs such as slurred speech, disorientation, or a lack of coordination. Numerous medical diseases, such as diabetes, low blood sugar, or mental disorders, can trigger these symptoms. Such actions could be considered discriminatory and violate the Americans with Disabilities Act.
In addition, the law states that employers may only test current or prospective employees after first making a conditional job offer. For some positions, such as those involving safety or security, alertness, and sobriety is essential to the job, but in other cases, it is not.
It is also important for employers to limit the testing to those in safety-sensitive positions and not all employees. It prevents the company from violating workers’ privacy rights by testing every employee and reducing costs. If a company is testing only safety-sensitive employees, limiting the window between when they are notified of their selection and when they must submit to the test is a good idea.
Legal Requirements
The DOT requires employers to maintain detailed documentation of their drug testing programs. It includes the following:
First, you must have a written drug-free policy in place that specifies your rules about who will be tested, how often, and what type of tests you’ll use. It’s also important to include the consequences of a positive test result. Generally, an employee can expect to be disciplined if they fail a test, but the exact consequence will vary by state.
Whenever you test an employee, the procedure must be under direct observation. It is to prevent specimen tampering and ensure the test results are attributed to the correct covered employee. You must also have a program for collecting urine samples from employees, which should be supervised and conducted under direct observation.
Finally, you’ll need a system for maintaining records of your testing results, including SAP initial evaluation reports and follow-up testing plans. You should also have a document detailing your SAP’s clinical characterization of the employee and any aftercare treatment and education recommendations.
Remember that you can only test employees randomly if your drug-free policy covers them. It’s also illegal to single out certain groups of employees for testing, such as based on age or gender. It can lead to discrimination lawsuits.
Testing Methods
In the private sector, employees are usually given minimal choice but to agree to random drug testing during hiring. Many job applications ask applicants to sign a statement agreeing to these tests before they can even be interviewed.
While some people may argue that it is unconstitutional for employers to test workers without reasonable suspicion, the courts have ruled that an employee’s rights are not violated as long as the tests are administered properly and according to state law. These tests can be done using blood, urine, hair, and other samples. Urine and blood tests are usually preferred because they are less invasive and can detect drugs that have passed through the body quickly.
Hair and saliva tests are also becoming more popular because they can provide a longer detection window than the other options. The most important thing is that an employer uses a reliable testing provider that understands the state laws and follows them exactly when conducting these tests.
If an employee fails a random drug test, the employer can take disciplinary action against them that could range from a warning to termination. If an employee is terminated for failing a drug test, they should consult a workers’ rights lawyer immediately to determine whether there are grounds for filing a wrongful termination claim.
Disciplinary Actions
Drug testing policies must comply with the laws of each jurisdiction. It includes laws regulating the method of test administration and requiring employers to maintain an employee assistance program and provide follow-up tests after workplace accidents. Most laws governing drug testing in the workplace come from state and local governments, though federal regulations apply to some highly regulated industries.
Some states allow employers to conduct random drug tests if the employer follows certain rules. These include giving employees written notice that they can be tested and the method for selecting which employees will be tested at random. Computerized random number generators are commonly used to ensure that all employees are equally likely to be selected. In addition, most employers make it clear in their policy that an employee refusing a drug test may be subject to discipline.
Other states allow employers to test workers with safety-sensitive jobs, such as airline pilots and truck drivers. Employers must reasonably suspect that the worker is under the influence of drugs or alcohol to justify this type of test. This standard is subjective and can result in discriminatory disciplinary action.
An employer’s reasonable suspicion must be based on objective factors, such as slurred speech and inability to stand or walk, rather than subjective symptoms of intoxication or impairment. Many of these physical signs can also be caused by certain medical conditions or illnesses, including diabetes and low blood sugar. Singling out these individuals for testing and disciplinary action could violate the Americans with Disabilities Act.
