A safer workplace

Employers are rightfully concerned about the risks and costs associated with the use of illegal drugs and alcohol in the workplace. Not only does workplace drug and alcohol use increase the likelihood of absenteeism, tardiness and poor performance, it increases the likelihood of workplace accidents and injuries. Drug and alcohol use also perpetuates attitude and morale problems. Roofing contractors and other employers operating in industries associated with significant safety hazards are particularly vulnerable to these issues.

To protect your workplace from issues associated with drug and alcohol use, consider implementing drug and alcohol testing—but do so in a lawful manner.

Reasons to test

Employers test for drug and alcohol use for a myriad of reasons, including to:

• Reduce costs and expenses associated with on-the-job accidents, increased absenteeism and lowered productivity
• Reduce costs and expenses of medical care associated with employee drug and alcohol use
• Reduce theft, violence and other drug-related illegal activity, including drug possession, distribution and trafficking
• Improve employee morale by providing employees with a safe, productive, drug- and alcohol-free workplace
• Set a standard of moral behavior for applicants, employees and the community by discouraging the use of unlawful and/or harmful substances
• Bolster the employer's corporate image to the public as a responsible, positive and community-driven business as well as a safe, productive and business-oriented company
• Comply with external legal obligations that mandate or reward a drug and/or alcohol testing policy

To minimize risks related to these issues, consider adopting a substance-abuse policy prohibiting workplace use of illegal drugs and alcohol. Such policies specify what substances are prohibited as well as the consequences for violating the policy. These types of policies provide for testing to specifically enforce the policy's provisions and/or deter and detect the use of illegal drugs and alcohol. The laws applicable to such testing vary among states; accordingly, consult an attorney familiar with such laws before implementing a substance-abuse policy.

Mandated testing

The threshold question for an employer considering adopting a substance-abuse policy and/or testing should be whether such a policy or testing is legally mandated.

The federal Drug-Free Workplace Act of 1988 applies to all individual recipients of federal grants or contracts and all organizations receiving federal grants. Organizations receiving federal contracts worth at least $100,000 that will be performed in whole or in part within the U.S. and are not merely for the acquisition of commercial goods (procurement contract or purchase order) also are covered by the act. Those covered by the act must:

• Certify they will make a continuous, good-faith effort to maintain a drug-free workplace for their employees by complying with the act
• Create and provide a policy statement to employees informing them the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the workplace and specifying the discipline that will be issued against those who violate the policy
• Establish ongoing drug-free awareness programs to inform employees of the dangers of workplace drug abuse; availability of drug counseling, rehabilitation and/or employee assistance programs; and the employer's policy against drug use and penalties for policy violations
• Warn employees that as a condition of employment they are required to comply with the employer's drug-free workplace policy and must report convictions of any workplace-related criminal drug violations within five calendar days
• Notify the contracting or granting agency within 10 calendar days of receiving notice that an employee was convicted of a workplace-related criminal drug violation
• Discipline any employee convicted of a workplace-related criminal drug violation or require him or her to satisfactorily participate in a drug abuse counseling, assistance or rehabilitation program

The act does not apply to subcontractors or alcohol use. The act also does not require (though it does encourage) drug testing in the workplace. In fact, the Department of Labor's (DOL's) Office of Management and Budget has stated drug testing is a possible component of a compliance program.

In addition, the Omnibus Transportation Employee Testing Act of 1991, administered by the Department of Transportation (DOT), requires specified drug and alcohol testing for employees in aviation, railroading and trucking who operate commercial motor vehicles (generally vehicles that exceed 26,000 pounds and/or transport hazardous materials or 16 or more passengers). DOT requires testing such operators for different reasons and at different times, for example, when transporting hazardous materials such as solvents, adhesives and propane that weigh more than 1,000 pounds. DOT also requires the following:

• Pre-employment testing of job applicants as part of the job application process
• Post-accident testing of an employee involved in an accident, generally depending on the severity of the accident and level of damage the accident caused
• Reasonable suspicion (also known as "probable cause") testing of employees an employer has reasonable cause to believe are under the influence of drugs or alcohol (This form of testing usually is conducted pursuant to an announced substance-abuse policy or provisions in a collective-bargaining agreement between the employer and union that represents employees suspected of drug or alcohol use.)
• Random testing of employees without probable cause (This form of testing generally is conducted pursuant to an announced substance-abuse policy and is intended to deter employees from using alcohol or drugs while at work or before reporting to work.)
• Return-to-duty testing of employees as a condition of their return to work after either a leave of absence; vacation; or completion of a drug counseling, assistance or rehabilitation program
• Follow-up (also known as "periodic") testing involving regularly scheduled, announced testing of employees

DOT has issued detailed regulations governing each of the aforementioned tests. If you have employees who operate covered commercial motor vehicles, ensure your testing policies and procedures comply with various DOT protocols.

Aside from these laws and any state laws or specific contract or work order, you are not required to have a substance-abuse policy or conduct drug or alcohol testing. Nevertheless, having a policy and conducting testing is a good idea. A substance-abuse policy backed by meaningful testing can help reduce many risks and may prevent costly, devastating accidents and injuries. In some states, having a substance-abuse policy and appropriate testing protocol actually can save you money by generating rebates on workers' compensation insurance premiums.

The key is to take a holistic, step-by-step approach to designing and implementing a substance-abuse policy and testing procedures.

Adopting a policy

Many employers decide to implement drug and alcohol testing in response to issues that have arisen, such as employee misconduct. However, before administering drug and alcohol testing, it is important to take the time to develop a comprehensive substance-abuse policy that makes sense for your workplace.

Attempting to quickly develop a substance-abuse policy in the middle of an emotionally charged situation in which an employee is suspected of workplace drug or alcohol use can lead to rash, emotional and unreasoned decisions. These decisions can come back to haunt even the best-intentioned employer and result in liability for claims such as discrimination, retaliation and/or privacy claims. Being proactive also allows you to become educated about the applicable legal requirements and allows you time to train your supervisors and staff accordingly.

Similar to other policies, your drug and alcohol policy should be written in language easily understood by your employees. At a minimum, your policy should address the following:

• Substances that constitute illegal drugs and alcohol. Keep in mind the Americans with Disabilities Act (ADA) does not allow you to outlaw the use of all drugs in the workplace (such as drugs prescribed to an employee by a physician) nor require employees to report prescription drugs they are taking. However, you can outlaw drugs taken without a legal prescription or taken in a manner contrary to a legal prescription and require employees to report any prescription drugs they are taking that may affect safety or performance at work.
• Prohibited activities. Your policy should specify the sale, use, possession, manufacture, dispensation, distribution and solicitation of drugs and alcohol are prohibited. It also should clarify such activities are prohibited during work hours and while in the workplace, which includes on-site and off-site locations. Keep in mind privacy issues that might arise, including the fact that many states prohibit discrimination based on the off-duty consumption of lawful substances.
• Applicable exceptions. If you envision exceptions to your substance-abuse policy, include them in your policy. For example, many employers will make exceptions for work-related social events or client entertainment. It is important to remember you may be held liable for the conduct of employees at after-hours, work-related social events.
• The tests. It is important to notify employees of the different circumstances under which drug and alcohol testing will be conducted. It is equally important to notify them of the types of tests that will be used. The best practice with respect to drafting an employment policy is to always obtain written, signed acknowledgement from employees before implementing the policy. This will help protect you from possible privacy and other common law claims in the future.
• Where testing will be conducted. Whenever possible, include details in your substance-abuse policy regarding where testing will be conducted. Testing should be conducted off-site at an approved laboratory (various legal issues apply to on-site, employer-provided testing).
• Results. After a laboratory test is performed, it should not be deemed to have yielded a positive result until such a result is documented and evaluated in a medically sound manner by a laboratory professional. Do not make assumptions regarding test results or attempt to interpret or influence test results.
• Test failure. Your policy should explain the disciplinary consequences of failing or refusing to take a required test. If desired, include specific guidelines for first-time or repeat offenders. However, remember to apply your policy consistently and in a nondiscriminatory manner to avoid liability for discrimination, retaliation, harassment and other legal claims.
• Appeals process. It is important to determine whether you will have an appeals process for contesting faulty test results, improper test administration and any discipline issued. Your policy may include a right to a last-chance agreement before termination or the right of referral to a counseling, assistance or rehabilitation program. If you decide to include these rights, clearly define the circumstances under which employees will have access to these procedures. Ultimately, your policy should be broadly drafted to provide you with maximum discretion.
• Related violations. Your policy should reference your existing safety rules and standards of conduct policy (if any). Your employees should know they face additional sanctions for violating your substance-abuse policy and do not get a "pass" on related policy violations. This allows you to hold all employees to the same standards of conduct while still allowing you to take into consideration an employee's drug or alcohol use.
• Workplace searches. Your policy should explicitly reserve your right to search for drugs and alcohol anywhere on your premises or work sites, including in any containers or vehicles. This will make clear to your employees they do not have a right to privacy when they are at a work site.

There are numerous other considerations that should play a role in your policy discussions even if they are not specifically included in the policy. For example, you should consider:

• Unions. If your work force is unionized, take the necessary steps before enacting or modifying a policy. Drug and alcohol testing is considered a mandatory subject of bargaining and, accordingly, such policies require conversation with the applicable union before implementation.
• Confidentiality. It is important to develop and consider procedures and safeguards for maintaining the confidentiality of all test records. As with all medical information, such records should be maintained separately from ordinary personnel file records.
• Implementation. You should properly inform employees of your policy and train supervisors and others tasked with enforcing the policy on how to identify the warning signs of drug and alcohol use, properly document such use and take appropriate action.
• Enforcement. As with any other policy, a substance-abuse policy must be enforced consistently and in a nondiscriminatory manner.

Drafting a comprehensive, effective substance-abuse policy is only the beginning of the process. To enforce your policy successfully, you must dedicate time and resources to the process of drug and alcohol testing.

Implementing testing

The main component of any substance-abuse policy will necessarily relate to what, if any, testing you decide to perform and under what circumstances. Testing generally is viewed by employers as the best means to enforce a substance-abuse policy. Nevertheless, testing also happens to be the area that is most highly regulated and varies the most among states.

Pre-employment testing is hailed by many as the best use of drug testing dollars because it theoretically gives you the opportunity to weed out users before they set foot on a work site. Most states permit this type of testing. The ADA also permits pre-employment testing at any time—even before a conditional job offer is made—as long as it is limited to illegal drug use and does not screen for legal prescription drugs or alcohol.

If alcohol is included in a screen, the screen must be conducted after a conditional offer of employment is made and ADA's procedures regarding medical examinations must be followed, including the need for the testing to be applied equally to all individuals applying for a particular job classification. A job offer generally can be withdrawn if the reason is job-related and consistent with business necessity or the employee poses a direct threat to the workplace.

After an employee is hired, the ADA permits you to continue such testing as long as it is job-related and consistent with business necessity or the employee poses a direct threat to the workplace. Whenever possible, consider reasonable accommodations (such as time off for rehabilitation or treatment).

Most states also allow employers to test employees when employers have a reasonable suspicion employees are using or under the influence of illegal drugs or alcohol in the workplace. Although such a suspicion may be based on the suspicions or observations of just one person, testing in such cases is most defensible when the suspicion is shared by more than one person (preferably managers), each of whom observed suspicious behaviors or circumstances firsthand. Some states also require managers be specially trained to identify signs of illegal drug and alcohol use.

Post-accident testing occurs when an employee has been involved in a work-related accident. Policies that provide for post-accident testing should consider whether testing will occur after all accidents, which often presents an impossible standard given that even something as minor as a trip or a small cut could be considered an "accident," or only after accidents netting a certain level of injury or property damage, which is the more common provision.

In some states, post-accident testing is permitted only if an accident occurs under circumstances that give rise to a "reasonable suspicion" of illegal drug or alcohol use. In those states, generalities requiring a certain level of injury or property damage are not sufficient to permit drug or alcohol testing.

Random testing is the most problematic type of testing for a number of reasons.

First, if such testing concerns alcohol and illegal drug use, the testing must be based on a particular safety concern related to the job in question. This is because an alcohol test is considered to be a medical test under the ADA (a test for illegal drugs is not). Therefore, such testing should be applied only to positions in which an employee, if impaired, would pose a safety threat.

For example, such testing likely would be appropriate for individuals working at a job site handling chemicals and equipment or climbing ladders and scaffolding. The testing would not be appropriate for an individual performing only office or administrative work. Random testing of strictly clerical individuals should include only testing for illegal drugs or be limited to testing for some other reason, such as reasonable suspicion or post-accident testing.

Second, after determining what random testing can include, you also must consider whether your state or city restricts random testing. Certain states allow random testing only for employees in "safety-sensitive positions," a category of jobs that is quite narrowly drawn. Although roofing workers and others working directly on roofing projects likely will qualify, it is worth checking the applicable laws and regulations to be sure.

Other states restrict how employees are selected for random testing. In some states, for example, employees must be selected for random testing by a process administered by an outside entity using a computer-generated randomization process. This restriction is intended to remove the employer from the process to make sure employees truly are selected at random and not based on any impermissible considerations or unfounded suspicions.

Third, if you use random testing, ensure the process contains controls to filter out false positives based on lawful activities. In other words, set limits to target current use, not past use, and the testing facility should use questionnaires that screen for recent use of substances that might produce a false positive. Although this should be done with all testing, it is of particular concern with random testing given the lack of other circumstances that might establish or confirm suspicions of use.

Periodic testing occurs at regular intervals. Such testing generally is lawful as long as employees are notified in advance of the time frame (not the specific dates) during which testing will occur and you are mindful of the caveats applicable to random testing. The caveats and limitations generally also apply to periodic testing though some states and cities prohibit such testing or limit it to safety-sensitive positions with special care being necessary when the test encompasses alcohol and illegal drug use.

The Equal Employment Opportunity Commission has cautioned that in addition to considering the positions and safety concerns to which testing is targeted, employers also must consider the testing's frequency to ensure it is not being used to harass, intimidate or retaliate against employees. Furthermore, you must be able to show the testing is not being used to follow up on an employee who has completed rehabilitation or who you believe is in need of rehabilitation. Such concerns may not be addressed under the cloak of indiscriminate periodic drug or alcohol testing.

The final type of testing occurs pursuant to a last-chance agreement, which is entered into with an employee who has tested positive for illegal drugs or alcohol and is being given a last chance to perform without using or being under the influence of such substances. Such agreements generally are accepted as being appropriate, but the agreements should specify the type of testing that will occur, duration or frequency of such testing (even if random) and period of time during which the agreement will be in effect (usually one year). Such agreements also should specify the consequences of violating the agreement or testing positive (generally termination).

Once your policy is in place and you have decided when and under what circumstances testing will occur, determine what testing methods you will employ. This is a critical question many employers forget to answer.

In most states, employers have great latitude in terms of the types of testing they can conduct, such as saliva testing, urine testing, hair testing and blood testing. But some states prohibit certain types of testing as being too intrusive. As a general rule, urine testing is the most widely accepted, and blood testing is the most widely prohibited. You must consider state and local laws to determine what testing is permitted for your employees.

Best practices

Testing for illegal drugs and alcohol helps make your workplace safer and protects your business from many issues that arise from workplace drug and alcohol use. It also reinforces substance-abuse policies already in place. The key is to prepare policies in advance to ensure your workplace is able to face the challenge of implementing drug and alcohol testing in a manner that complies with applicable federal, state and local laws.

Jason C. Kim is a partner and Gray I. Mateo-Harris is an associate in the labor and employment practice group of the Chicago-based law firm Neal, Gerber & Eisenberg LLP.

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