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It is the Company's policy not to employ persons who use illegal drugs or abuse alcohol. Accordingly, the Company shall have the right to require an employee to submit to testing for drug and/or alcohol use as a continuing condition of employment as the Company deems necessary to the safe and efficient operation of the program. An employee who refuses to submit to drug and/or alcohol testing or who tests positive may be suspended from duty pending further investigation and may be subject to discipline, up to and including immediate discharge.
Like most personnel policies, drug and alcohol policies vary widely. Some employee manuals contain simple prohibitions on drug and alcohol use, while others contain detailed provisions relating to drug and alcohol testing at both the pre-employment and post-employment stages. Of course, employers that are subject to drug testing laws or regulations (e.g., those subject to DOT regulations), must ensure that their policies conform to the applicable standards.

Most employers should consider adopting some type of drug and alcohol policy in an effort to maintain a drug and alcohol free workplace. At minimum, the employee manual may simply state that the employer maintains a place of employment which is free from recognized hazards, such as drug and alcohol use. Employers that have or wish to adopt drug and alcohol testing policies should ensure that their policies and testing procedures meet the following criteria:

  • Ensure that the policy suits your workforce and the work being performed. Obviously, any employee under the influence of illegal drugs or alcohol is a health and safety threat. However, there is a quantum difference between the threat posed by an office clerical worker under the influence and a heavy equipment operator so impaired. Accordingly, employers should tailor their polices to suit the dangers that drugs and alcohol pose.

  • Ensure that the policy contains a detailed description concerning what is prohibited (e.g., not only consuming drugs or alcohol while at work, but reporting to work under the influence). In the drug and alcohol context, it is better to have more, not less, detail. Employers should be confident that employees understand the prohibitions and that management follows the policy guidelines. Thus, for example, the policy can contain the specific blood alcohol level that will result in suspension or immediate discharge.

  • Select a qualified, reputable testing facility to perform the drug and alcohol testing. The case reporters are rife with challenges to drug and alcohol tests, ranging from disputes over testing techniques to disputes over chain of custody. A qualified testing facility is less likely to be the subject of these types of attacks and better able to assist the employer with a defense to these types of challenges.

  • Require that any samples be taken at the testing facility. The particular manner in which a drug and alcohol testing program is conducted might constitute an unlawful invasion of an employee's privacy. A qualified testing facility has the experience to ensure that employee privacy rights and dignity are protected when he or she provides the sample. Likewise, there must not be a confidentiality breach.

  • Ensure that employees are tested only for alcohol and other controlled substances (e.g., marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP)). The testing should not disclose private medical facts about the employee. An employer might face serious legal challenges, both common law and statutory, if the testing were to disclose conditions such as pregnancy or disability. The testing facility should be able to limit the breadth of the test to alcohol and other controlled substances. Moreover, the testing facility should provide the employer with only a positive or negative result (for drugs or alcohol). While many employers want to know the details regarding an employee drug test, details are generally not necessary. A policy violation should not turn, for example, on the type of drug ingested, only whether the drug was ingested.

  • Ensure that the policy allows for a retest of the sample when the result is positive. Alternatively, the employee may be accorded a right to a "split-sample" test, where the same sample is tested by two different testing facilities. Either approach will reduce the number of challenges made to the testing results.

  • Ensure that the policy allows for an employee discussion with a qualified medical review officer ("MRO"). A positive drug test may be the result of a lawfully prescribed medication or ingestion of lawful substances. The employee should be allowed to explain away a positive drug test. Again, the explanation should be given to the MRO, not the employer. This will prevent possible invasion of privacy and discrimination concerns.

  • If appropriate, limit the policy's application only to those employees in safety sensitive positions.

  • Provide for a variety of testing contingencies. Contingencies include: post-accident drug & alcohol tests; random drug and alcohol tests; reasonable suspicion drug and alcohol tests; return to duty drug and alcohol tests; follow-up drug and alcohol tests.

  • Consider establishing an employee assistance program ("EAP") to which employees may be referred. Sometimes good employees test positive for drugs and alcohol. An EAP may assist an otherwise competent employee's return to work.

  • Finally, have employees sign acknowledgments that they have received and read the drug and alcohol policy and that they consent to being tested.
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