How to Prescribe Drug Testing

Few things are more potentially devastating to a workplace than an employee with a drug or alcohol problem—and few things are more difficult to prove. With the heightened awareness of privacy issues, instituting a drug-testing policy can land a company on shaky legal ground. Yet such a policy can be useful. Many experts consider the decrease in positive employment-related drug test results as a sign that employees take testing seriously. If your company does drug testing, or wants to implement a program, Nancy Bertrando, chair of the employment law department for Greenberg Glusker Fields Claman & Machtinger LLP in Los Angeles, offers some rules.

How common is drug use in the workplace?
SmithKline Beecham Corp., one of the primary testing agencies based in Philadelphia, has an interesting study. In 1987, its statistical information showed that in employment-related testing, 18.1 percent of those tested showed positive drug use. In 1997, only 5 percent of approximately 5 million employment-related tests came back positive. I think, in part, that’s a sign that drug-testing programs are working.

Almost 98 percent of Fortune 200 companies have drug-testing policies. As more employers implement drug-testing policies, it seems to have an effect on drug use in the workplace. As far as the drugs of choice in these tests, according to SmithKline, 60 percent of positive tests are for marijuana, 16 percent of positive tests are for cocaine, and opiates make up 9 to 10 percent.

How difficult is it to conduct legally defensible drug testing?
A lot of it depends on the state. In California, for example, there’s tension between privacy rights of employees and rights of employers to test. The California state constitution contains an individual right to privacy which has been applied fairly rigorously to drug testing, so it’s hard to implement random testing in California. Unless it’s a safety position or there are some real signs that drug use is going on, employers in that state don’t have the right to test current employees. Random testing is a risk in many states [for similar reasons]. Even if a company already has a drug-testing policy, HR should look at the state law—especially if it’s an employer that has multiple state offices. Make sure the state supports random testing. And be cognizant of state laws concerning privacy.

What does a good drug policy have?
At a minimum, a policy should prohibit the use, possession, sale or transfer of illegal drugs in the workplace. Most employers have that. It doesn’t say drug testing may be implemented, but it says drugs and alcohol won’t be permitted and no one is allowed to work under the influence. More detailed policies are going to prohibit the use, possession, sale or transfer of illegal drugs on or off company time. That kind of policy brings privacy issues into play.

In certain jurisdictions, you have to be very careful of a policy that’s going to regulate your employees’ time away from the company. The conflict is privacy—regulating off-duty hours that don’t affect the workplace. There’s going to be a conflict created by that. Somebody terminated because of off-premises drug use that doesn’t affect the workplace may well have a claim for invasion of privacy. California’s privacy consideration is unique in that it’s part of the constitution, but even if other states don’t have constitutional privacy rights, they will have common-law developments that deal with the same issues.

How do you decide which side wins in drug testing vs. privacy?
In any of these balancing acts, you’ll look at workplace safety vs. employee privacy, and if you have safety or security issues, you’ll have much more latitude implementing drug testing with those types of employees—a forklift driver versus an accountant, for example. Also, prohibiting work under the influence of drugs or alcohol, even if the employee didn’t use it on company property, is a valuable and enforceable policy in any jurisdiction. But with those policies, employers must be cognizant of their obligations under the Americans with Disabilities Act (ADA), which, although it doesn’t protect employees from use of illegal drugs, it does protect them from discrimination once they’ve been rehabilitated.

Is an employee protected by the ADA if he or she hasn’t been rehabilitated?
The ADA will only protect them in instances in which they’ve been rehabilitated. The ADA has specific qualifiers that current users of drugs aren’t protected, but former users of drugs—individuals participating in or completing drug programs—are a different story.

Let’s talk about different types of drug testing policies, starting with pre-employment. Many employers have drug testing as a condition of employment. Done properly, that type of testing will be allowed. So a lot of employment applications say that hiring will be effective upon completion of a drug test. If you’re going to do pre-employment testing, employers want to be sure prospective employees have been given notice of this, that all applicants are treated similarly, and that testing is conducted by a reputable lab that respects each individual’s rights of privacy. The applicant should have the opportunity to explain positive test results. Generally, these tests will be upheld if they’re done right.

What about random drug testing?
In safety-sensitive environments, random drug testing will be upheld. Random drug testing for companies that aren’t safety-sensitive, like accounting, is going to be much more difficult because there’s the argument that the employer has violated the right to privacy. It’s the biggest area of vulnerability to employers. If your industry is covered by federal regulations that provide for drug testing, or if an employee is in a sensitive position or in a position in which use could result in the employee’s death or death of others, random testing will probably be OK. But this is a risky area for employers.

What about testing for “reasonable suspicion?”
When a supervisor determines an employee is acting improperly and elects to implement drug testing, that’s liable to be challenged based on privacy. According to SmithKline, last year, 73 percent of employees sent to them for “reasonable-suspicion” testing were clean. All those employees have cases for invasion of privacy, infliction of emotional distress and so on.

It’s particularly important in reasonable-suspicion testing to make sure managers are well trained to understand signs of potential drug abuse: bloodshot eyes, frequent sniffling, tremors, sunglasses worn indoors, profuse perspiration, appearing confused, refusing to talk, talking too loudly, mood swings, lack of coordination, aggressive or violent behavior, frequent unreported absences, unexplained disappearances during work time, difficulty remembering tasks and lapses in concentration. But managers need to be trained to look for all these signs, things that taken together would give reasonable suspicion of drug use. The more objective information you have to support a drug test, the better off you’ll be in defending a challenge to it. Also, always put employees on notice—don’t just tell them one day that they seem like they’re on drugs. They have to be tested.

What if a drug test shows up positive for prescribed legal drugs, but drugs that can affect performance, like sedatives?
Drugs for depression or other mental conditions get into some more of the ADA issues. Employers can’t discriminate against an employee for taking a medically prescribed drug for a condition. And once the employer has knowledge of that condition, the employer has to worry about potentially violating the ADA if the company takes action. Mental illnesses like depression are covered under the ADA. Employers need to be cognizant of their obligations under the ADA. So only certain banned substances should be looked at.

How do new state laws that allow marijuana use for certain conditions fit in here?
For those laws in California and Arizona [that support] medical-need marijuana use, the ADA comes into play. If the person is in a safety-sensitive position and marijuana use could hurt the employee or others, there’s no obligation to reasonably accommodate.

For employers currently implementing a policy, how much warning should they give employees?
If the testing isn’t based on a particular incident, they can implement today and start testing within a month or two. If it’s a particular individual you want to test, first objectively document the information that supports testing. Make sure the proper homework is done. Then send the employee to a reputable lab—hopefully with he or she having been on warning already. Also, don’t tell anyone that doesn’t have to know about the employee being tested.

And if the results are positive?
The employee should have the ability to explain any positive results. For current drug use, the ADA isn’t going to prohibit you from terminating somebody if you feel that it’s warranted under the circumstances. Some states require employers to accommodate an employee’s request for unpaid time off for rehab. If an employee requests time off, the best thing is to work with that employee. If the employee isn’t willing to face the issue, then you may have no option but to terminate. But from various perspectives, it may be in everyone’s best interest to allow an employee time for rehabilitation because if a good employee is saved, everyone benefits.