Have you adopted a Drug and Alcohol Policy?
Drug testing programs work best when implemented based on a clear, written policy that is shared with all employees, along with employee education about the dangers of alcohol and drug abuse, supervisor training on the signs and symptoms of alcohol and drug abuse, and an Employee Assistance Program, or a list of resources, for employees who may have an alcohol or drug problem.
Are you required to adopt a Drug and Alcohol Policy?
Pennsylvania does not have a state law that prohibits or governs drug and alcohol policies for private employers. However, the Drug-Free Workplace Act of 1988 requires some Federal contractors (generally those with a contract valued at more than $100,000) and all Federal grantees to agree to provide a “drug-free workplace.” One of the requirements of the act is to publish and distribute a policy statement to all covered employees. Also, employers of “safety-sensitive transportation employees,” who are regulated by the U.S. Department of Transportation (DOT) must comply with Federal and applicable DOT Agency regulations.
Is your workplace drug testing program covered by laws or regulations?
Pennsylvania does not have a state law that regulates or prohibits drug testing in the private sector. Most private employers have flexibility in implementing drug testing policies that meet the needs of their organization, unless they are subject to certain Federal regulations, such as the DOT regulations discussed above for employees in safety-sensitive positions.
Are there guidelines to keep me on safe legal ground?
Federal agencies conducting drug testing must follow standardized procedures established by the Substance Abuse and Mental Health Services Administration (SAMHSA), which is part of the U.S. Department of Health and Human Services (DHHS). While private employers are not required to follow the SAMHSA guidelines, court decisions have supported following these guidelines, which were designed to ensure accuracy and validity of the testing process.
What are the potential legal challenges to workplace drug testing?
The American with Disabilities Act (ADA) protects a qualified individual with a disability from discrimination. If an otherwise qualified candidate who is taking prescribed medication for a disability is denied employment because of a positive drug test, the employer may face liability.
Other Federal non-discrimination statutes may be used to challenge a drug testing program that appears to impose additional testing on a certain protected class of employees (e.g., race, age, or gender).
Drug testing programs may also be challenged based on an individual’s right to privacy; such privacy challenges are unlikely to succeed unless an employee is required to disrobe or provide a urine sample in front of others.
When are drug tests conducted?
The most common circumstances in which employers require drug tests are:
Pre-Employment: Conducted to prevent hiring individuals who use drugs, it typically takes place after a conditional offer of employment has been made. Note: the ADA prohibits pre-employment testing for alcohol use.
Reasonable Suspicion: Conducted when supervisors have “probable cause” (i.e., documented, observable signs and symptoms) for suspecting drug use or a violation of the workplace drug policy. Supervisors must have comprehensive training in what behavior justifies such testing.
Post-Accident: It is important to establish objective criteria that will trigger a post-accident test and how and by whom such tests will be administered.
Random: Performed on an unannounced, unpredictable basis on employees whose information has been placed in a testing pool from which a scientifically arbitrary selection is made (i.e. computer generated).
Periodic: Scheduled in advance and uniformly administered (e.g., annual basis).
Return-to-Duty: A one-time, announced test when an employee has tested positive previously and has completed the required treatment for substance abuse and is ready to return to the workplace.
Photo credit: r.nial.bradshaw / Foter / CC BY