Best Practices for Workplace Drug and Alcohol Testing

CNBC^® reports: “Showing up to work high? You’re not alone.” According to a survey conducted by Mashable.com, 9.7% of Americans smoke marijuana before going to work. What’s more, of the 534 workers surveyed who admitted to pre-job smoking, almost 81% got their weed on the street, illegally.

Surprised? The U.S. Department of Labor says “[t]he majority of employers across the United States are NOT required to drug test and many state and local governments have statutes that limit or prohibit workplace testing, unless required by state or Federal regulations for certain jobs.”  (To find out whether your workplace is covered by the Drug-Free Workplace Act of 1988, visit the Department of Labor’s related FAQ at http://www.dol.gov/elaws/asp/drugfree/screenfq.htm.)

So what’s a boss to do? Here is some information about the resources available, the testing that you can legally do, best practices, and what your employees may be doing to fake out the tests.

Quest Diagnostics, a major provider of employee drug testing services, offers volumes of information on its website regarding trends in employee testing, advice for employers, the types of tests available, and scores of other topics, as well as a blog where employers can share information. Quest also makes an important distinction between what it calls “reasonable suspicion testing” and pre-employment screening, suggesting tips for employers to keep in mind when crafting their policies.

LexisNexis also provides reference material on this topic including: Employment Screening and Drugs and the Law: Detection, Recognition and Investigation, 4th Edition

Reasonable Suspicion Testing

Employers who are federally required to test their employees already know whom they should test and the steps they should take. However, in light of the ever-increasing number of workers who come to work under the influence, employers who aren’t mandated to test may want to implement policies for testing employees they suspect of using drugs before reporting to their posts. 

Of course, those employers should consider whether the Department of Labor (DOL), state laws and regulations, or a collective bargaining agreement regulate their ability to do so. If an employer decides to implement a reasonable suspicion testing policy, Quest recommends the following best practices:

• Include reasonable-suspicion drug screening in written company policies that are distributed to employees to make them aware that they’re subject to testing.
• Train all supervisors on a recurring basis to recognize the signs of intoxication, to document those signs, and to properly develop reasonable suspicion. Quest offers online training.
• Only test employees based on current observations—immediately before, during or immediately after an employee works—and not simply on the basis of past incidents or observations.
• Use simple, clear language in describing the symptoms observed, rather than legalese like “contemporaneous” or “articulable,” which are words that lawyers associate with the concept of reasonable suspicion, but do nothing to help support the employer’s decision to test.
• Get a second opinion when a supervisor suspects an employee of drug or alcohol use in order to protect the supervisor, the company and the rights of the employee.
• Test as soon as possible after relieving an employee from duty due to suspicion of intoxication or drug use. Either implement on-site drug testing or immediately contact an off-site provider to make arrangements.
• If using an off-site provider, do not permit the employee to drive himself anywhere unless he first tests negative.

In addition to this list, Quest also continuously offers Webinars on the topic, which are archived after being aired.

Department of Labor

The DOL has created a Web-based Drug-Free Workplace Policy Builder, located at http://www.dol.gov/elaws/asp/drugfree/drugs/screen1.asp. This tool walks the employer through the process of creating a drug screening policy, step by step, so that employers can be certain that their policies comply with DOL regulations. After the employer completes the questionnaire, the site produces a written, standardized policy that can be printed and distributed as recommended by Quest. The site states that the policy will consider:

• What safeguards are built into the testing program
• How accuracy is ensured
• When testing will be performed
• How testing will be conducted
• What substances are detected
• Potential consequences
• What assistance is available

The DOL suggests that employers receive more accurate and reliable results if they adhere to the Substance Abuse and Mental Health Services Administration (SAMHSA) testing guidelines. Like Quest, the DOL provides its own list of best practices:

• Distribute the drug testing policy in writing
• Follow SAMHSA’s guidelines when implementing the testing policy
• Take care in documenting the chain of custody when a sample is taken from an employee
• Save a portion of each sample for “confirmation testing” after the initial test
• After the first test, use a more sophisticated method of testing to ensure accuracy
• Have a Medical Review Officer (MRO) in place to address all positive results by, among other things, allowing the employee to offer a legitimate medical reason for the result
• Maintain confidentiality
• Refer employees who test positive to drug and alcohol treatment services
• Educate supervisors and employees on the implementation of your policy
• Decide which types of testing you intend to do—pre-employment, pre-duty, periodic, random, post-accident, reasonable suspicion, return-to-duty, follow-up, etc.—which drugs you will test for, and by which method(s)

What Your Policy Should Include

The DOL suggests that any workplace drug testing policy should consider 13 specific questions:

1. What is the purpose/goal of your policy?
2. Who is covered by your policy?
3. When does your policy apply?
4. What behavior is prohibited?
5. Will employees be required to notify you of drug-related convictions?
6. Does your policy include searches?
7. Does your program include drug testing?
8. What will the consequences be if your policy is violated?
9. Are there Return-to-Work Agreements?
10. What type of assistance is available?
11. How is employee confidentiality protected?
12. Who is responsible for enforcing your policy?
13. How will your policy be communicated to employees?

The Society for Human Resource Management offers a sample workplace drug and alcohol policy on its website, last updated in June.  Some other samples are offered by the State of Texas, the Construction Coalition for a Drug- and Alcohol-Free Workplace, Missouri Employers Mutual, the Nebraska Department of Transportation, the Federal Aviation Administration, the Ohio Department of Transportation, and countless other entities.

Best Buy and PGE make their policies available online.

Additionally, SAMHSA maintains a list of the Department of Health and Human Services’ certified testing labs at http://www.samhsa.gov/workplace/lab-list.

Concerns for Small Businesses

According to the National Federation of Independent Business (NFIB), small businesses “bear the greatest burden of substance abusers,” because drug users avoid big business that they expect to have drug-testing policies. They are aware, according to NFIB, that small businesses often lack the resources to implement testing. On the flip side, small businesses that don’t test risk being sued for negligence if an employee causes an accident while under the influence at work. 

NFIB has its own recommendations specific to small businesses that plan (or are legally required) to test their employees. First, rather than singling out employees for testing under suspicion of drug or alcohol use, which could subject an employer to a lawsuit for discrimination, all employees should be tested. Next, all businesses who receive at least $100,000 in federal contract funding must test their workers. Third, the Americans with Disabilities Act (ADA) requires any employer with at least 15 employees to make a conditional offer of employment before testing. Fourth, don’t make the mistake of obtaining a sample from a worker without consent—it’s illegal, NFIB says. And finally, look at your state’s laws and regulations pertaining to drug testing. 

Faking Out the Tests

It’s no surprise that many workers who are likely to test positive try to slip past the screening process using various dodge methods. NORML, an organization working to legalize marijuana, provides drug testing tips on its website. In a piece called Dealing With Urinalysis on Short Notice, the California chapter of NORML:

• Explains to “wash yourself out” by drinking as much water as possible before the test and notes the use of certain substances as drug “screens” to mask an otherwise positive result
• Discusses various ways in which workers tamper with urine samples or substitute a “clean” person’s urine for their own
• Offers tips on when to insist on a blood test versus a urine test, based on how recently one has used
• Suggests that some workers insist on a hair test, if their employer offers it
• Details the ins and outs of legal challenges to the employer’s right to test
• Provides the numbers to phone hotlines that will answer questions about workplace drug testing
• Advises workers to test themselves when possible
• Offers some basis on which workers can challenge the accuracy or reliability of tests

A simple Google™ search for “employees trick drug tests” turns up plenty of resources—over a million hits, in fact—on how to fake your results. Even WebMD^® has published information on how workers can beat drug tests with ordinary household items like vinegar, lemon juice, detergent, baking soda, salt, and drain-cleaning products. These substances are either ingested or used to adulterate the sample.

Some solutions to these tricks include asking employees to submit to a search, to have them remove enough of their clothing to ensure they aren’t carrying an adulterant or a “clean” sample, to report to the testing site immediately with an escort after being notified that they will be tested, or provide more than one type of sample (such as blood and urine).

On the other hand, employers would be wise to educate themselves on the rights of their workers vis-à-vis drug testing. As a starting point, the ACLU keeps tabs on the latest developments in drug testing laws when they are challenged in court, and SAMHSA’s website offers continuously updated guidelines for employers who are legally required to test their workers.

Don’t Reinvent the Wheel

With all of the resources already out there, including sample drug testing policies and the DOL’s tool for building your own policy, why waste time and money on creating a policy from scratch? With the SAMHSA guidelines, Quest’s best practices, and employees’ tactics for tricking the tests in mind, tailor an existing policy to your workplace’s needs, and team up with a certified lab that will produce reliable and accurate results to protect your workplace from accidents and your company from liability.