Drug Testing in the Workplace

OSHA’s general duty clause requires an employer to provide employees with employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. A drug free workplace policy works toward that end.

A drug free workplace policy sends a clear message that the use of drugs and alcohol in the workplace is prohibited. An effective policy will have some key elements:
  • Clear purpose and intent with expectations regarding drugs, alcohol and prescription and over-the-counter medication usage
  • Applicability to all employees or workers on company property
  • Drug testing protocol
  • Disciplinary action to those in violation

Supervisors play a key role in identifying and addressing violations, as they often serve as the link between their employees and Human Resources or other support resources like an employee assistance program (EAP). Training is a must for supervisors as it relates to understanding the drug free workplace policy and implementing it by helping to identify substance abuse issues in the workplace and intervening when required.

In 2018, OSHA clarified that most instances of drug free workplace testing are permissible, including random drug testing, testing under state workers’ compensation laws or other federal laws, reasonable suspicion testing, and testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees, provided that all employees whose conduct could have contributed to the incident are tested, not just those who reported injuries. 

Generally, a reasonable suspicion test can be triggered by one or more of these criteria: (1) an employee appears to be impaired or has engaged in conduct or behaviors suggestive of a current policy violation; (2) an employee admits to a supervisor or Human Resources to having recently engaged in the use of alcohol, illegal drugs or other controlled substances in violation of the company’s policy; or (3) an employee is involved in a workplace accident or near miss involving machinery and the employee’s acts appear to have caused or contributed to the incident in question. 

Accidents or near miss incidents involving machinery require automatic testing under most policies. For employers with drug free workplace programs that administer reasonable suspicion testing, it is recommended that two members of management and/or human resources complete a checklist based on their independent, personal observations of the employee’s appearance and behavior that would indicate impairment. Testing facilities can arrange for mobile testing on the employer’s property, or after-hours testing at the testing facility (clinic, hospital). Certainly, for an employee suspected of being under the influence, an employer does not want to allow them to drive themselves to a testing facility or home, so arrangements should be made accordingly, such as a ride from a friend or family member, or even a corporate ride-sharing service or taxi. While an employer cannot forcibly detain an employee, if the employee insists on leaving in their own vehicle, employers can call law enforcement with the name of the employee and description of the vehicle and plate number.

Safety is an employer’s first priority, and an effective drug testing program and policy will eliminate substantial risk of death or serious physical harm in the workplace.

For assistance developing or reviewing your company’s drug free workplace policy and procedures, please contact our Labor & Employment group.

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