Drug Testing Policy
Why You Need A Drug Testing Policy?
A drug testing policy is the key first step in developing a workplacedrug testing program. The drug testing policy ensures that the drug testing program is fairly and legally conducted while protecting the rights of everyone involved – from the employees to the laboratory technicians, and most importantly the employees.
Several US states have laws that require a written drug testing policy and some require state approval for the drug testing policy before a program can be implemented. Some US states require a notification period (between 10 and 60 days) before a drug testing program can be implemented.
Elements of a Drug Testing Policy
A drug testing policy generally explains the reasons for the existence of the drug testing policy. The most common reason is health and safety. The most common benefit is deterrence.
Pre-employment drug testing during the recruitment process is sometimes not included in a drug testing policy because it occurs before an employment relationship exists between a worker and employer. The law in some US states requires that any drug testing can be performed post-hire.
The drug testing policy must clearly state when the services of a Medical Review Officer will be used. It must be clear if the employees have the option of selecting their own Medical Review Officer.
A written copy of the drug testing policy should be provided to all employees and they should be asked to sign and date an acknowledgment after they have reviewed the drug testing policy. The receipt should be kept in the personnel file.
Some US states require that Drug Free Workplace signs should be displayed in the workplace.
The drug testing policy should be clear about the technologies and laboratories used during the drug testing process. Confirmation tests for initial positive tests are required by law in some US states. Federally- or state-certified laboratories must be used for certain drug testing programs (such us DOT drug testing). In addition, some US states require that all sample testing follow the US Department of Transportation guidelines.
The drug testing policy must be especially clear about the circumstances when post-accident drug testing is conducted. At least 40 US states will consider denying Workers’ Compensation benefits when a post-accident drug test is positive and some of those states also consider denying unemployment benefits. An employer’s drug testing policy must therefore be very clear on the consequences of a positive post-accident drug test.
The drug testing policy should clearly state the training provided related to the drug testing policy and also substance-abuse awareness. As a preventative method, the training provided to supervisors and managers, especially in relation to ‘reasonable suspicion’, should be clear in the drug testing policy so that subordinates are aware of the training effort being made. Substance-abuse awareness training is a legal requirement in some US states.
The drug testing policy should clearly state the criteria for random selection and how selection pools are produced. The percentage of employees randomly tested in each pool during a specified period should be clear. There are specific legal restrictions on random drug testing in some states and the US DOT regulations have precise rules about the random selection algorithms. The drug testing policy should provide as much information as possible about the random selection procedures.
A drug testing policy must explain how the employer complies with any data protection regulations, protects the privacy rights of the employees, and provides access to data on request.
Legal Review of Drug Testing Policy
It is essential that a workplace drug testing policy is reviewed by a legal expert. Without a legal review, there is no way to know if the drug testing policy complies with potentially complex regulations and laws that apply to workplace drug testing policies.
Drug Testing Law and Drug Testing Policies
Many workplace drug testing programs are implemented to comply with drug testing law, which means that the drug testing policy is often not as comprehensive or as useful as it might be. Implementing a drug testing policy simply to comply with drug testing law can mean that the focus is on regulatory compliance rather than the actual intention of the drug testing law (typically to improve workplace safety).
The drug testing policy of a company should ideally be broadly explained in an employment contract. However, care must be taken to ensure that any clauses in an employment contract related to drug testing should not include the discretion to conduct drug testing in what could be interpreted as an arbitrary or capricious manner. The objective of including workplace drug testing in an employment contract should be to facility a workplace drug testing program rather than to control the operation of program.
Drug testing laws do not generally deal with unfair dismissal, even though this is one of the most important aspects of workplace drug testing policies. It is often the specifics of an individual case that determine if a dismissal is considered unfair, including conduct, capability, or some other 'substantial reason'. In general, a positive test result revealing an on-duty consumption of drugs or present impairment from off-duty consumption is highly likely to constitute a legitimate ground for dismissal.
The position regarding off-duty drug consumption strictly depends on the circumstances. An employer needs to be able to show that off-duty consumption gives rise to health and safety concerns (for example, operating heavy machinery while under the residual effects of drugs is a clear safety concern whereas a similar positive drug test by a shop assistance would not generally pose any safety problems). In the UK, the case of O'Flynn v Airlinks the Airport Coach Co Ltd (EAT 0269/01), where a drug policy formed part of the employment contract, the court ruled that off-duty consumption of cannabis was cause for dismissal.
One area where employers must exercise extreme caution with dismissals for drug abuse is adherence to the written workplace drug testing policy. An employer should ideally be able to prove that every effort has been made in general to ensure compliance with the policy and that the policy was in fact followed in the specific case.
While not specifically a drug testing law, the UK Health and Safety at Work etc Act 1974 is considered the primary source of encouragement for workplace drug testing in the UK. The Health and Safety Executive has identified employee drug misuse as an issue relevant to workplace health and safety and published a booklet "Drug Misuse at Work: A Guide for Employers" (1999) designed to assist employers in addressing drug misuse at work. Drug testing is identified as a sensitive issue that should be part of an organization’s overall occupational health policy and should be clearly designed to prevent workplace risks.