The When and Why of Employer Drug Testing

November 30, 2020

Employers should review their positions within the company to understand if drug testing is necessary. It is not uncommon for employers to require new employees to pass a pre-employment drug test. But what constitutes a “pass” result? When looking to define acceptable results, it’s important to understand if an employer may be regulated by other agencies, like the Department of Transportation or other entities that enforce a drug free workplace. In these instances, employers should look to use those guidelines when determining satisfactory results. Now, you may be thinking, what are other employers doing about screening for marijuana for employees who work in Washington state, or other states where its legal recreationally? It’s general knowledge that marijuana may stay in the body’s system even after the intoxicating effects wear off, which may produce a positive result for someone who is not currently impaired. Marijuana is a legal substance in Washington & Oregon, however, just like alcohol, it should not be consumed during the workday. The employer can take a stance of absolutely no marijuana use, just as some companies take a tobacco-free stance, but employers should realize that this can limit a candidate pool when recruiting.

To continue to prevent any illegal drug use, some employers implement random drug testing. Random testing invades the employee’s privacy and should only be implemented after sufficient notice is provided to existing employees (typically 30 days’ notice, but applicable state and local laws should be consulted). Furthermore, this policy should be in writing, reflect the current practice and allow the employee to sign their acknowledgement of this plan. It is also important that the testing truly is random. Some payroll systems/HRIS have this feature and will allow a random list to be generated, but most testing facilities will provide a list of names (chosen at random) as long as the employer provides a current list of employees, along with how many names to pull, and what frequency is needed (monthly, quarterly, etc.). By allowing a third party to generate the list, allegations of the employer unfairly “picking on someone” is greatly reduced The testing facility may even provide the employer a list of alternates in case a current employee is on vacation, absent due to illness or out for another approved leave. Be prepared for someone who may admit they will not be clean. What is the next step for an employer? Does this fall under a last chance agreement now that the employee is speaking up? The employee can be informed that they are required to test and if they would like to decline doing so, they may resign from their position. Positive test results can be grounds for termination; however, some state laws provide additional safeguards for employees first. Additionally, ending employment always carries risk and should be reviewed thoroughly before a decision is made. Associated Industries members always have access to the HR and legal teams for in depth guidance and questions that may arise regarding these types of situations.

What if an employee is acting “strange” while at work? The next question to ask is, define “strange.” Many managers want to take immediate action but are unsure if it constitutes a drug test. If an employer wants the ability to test employees who they believe to be impaired, then a reasonable suspicion drug testing policy is crucial. This policy informs employees that the employer has the right to test. With proper training, managers can know what to look for, and when an employee’s or others’ safety may be at risk. Focus on performance issues in the moment. Imagine if an employer sends an employee for a reasonable suspicion drug test and it comes back negative. The focus would still be on the concerns the manager observed and the employer would be working to outline expectations going forward. But an awkward situation has already been created for the employee and manager in charge.

Before sending an employee for a reasonable suspicion drug test, the manager should feel confident that the employee is impaired and not just tired from their newborn child, or distracted by upcoming school finals.

As consultants, we often hear from concerned managers and executives that they are worried that one of their employees may have a problem with drugs or alcohol. It is important to gather facts and confront the employee with the basis for the employer’s concern. Ideally, the employer should have a private conversation with the employee during which the employer would tell the employee that the employer has noticed performance issues, slurred speech, unexcused absences, blood-shot eyes, etc. The employer should ask the employee if there is an explanation for these changes. By giving the individual the opportunity to discuss the concerning characteristics, the employer can determine whether there is a legitimate medical issue or other concern unrelated to addiction or the inappropriate use of alcohol or illegal drugs.

Should the employee inform the employer of a condition that could constitute a disability or protected condition, this information should start the interactive process for the employer to understand how they can help the employee reach job objectives or other expectations that have been defined. Initial inquiries by the employer should focus only on the employee’s job execution, work communication, safety while at the workplace, and the like. The employer should not imply a substance abuse problem or assume a disability, nor ignore one when it is communicated by the employee.

The employer should continue to educate leadership and evaluate the requirements of specific roles within the organization. If the position requires exposure to heavy machinery (crane operation, forklift, delivery driver), vulnerable adults, children, or the general public, then an employer may want to be more strict on their drug testing requirements as the employer could be held liable for negligent hiring if an employee was impaired. On the other end, the employer may be aware of changes in state or local legislature and may want to see how those changes will impact their culture and philosophical views when determining if testing is right for the organization. Testing facilities can omit marijuana testing if an employer chooses not to screen for this substance.