Drug Testing Without Drug Policy

System · March 2003

Has anyone ever had an employee testing for drugs for "reason to suspect" without having a formal drug testing policy? Can you require them to do so, or can you just ask if they will?

jimlegal · March 2003

Caution, caution!!! Taking off down a road with no written policy may be dangerous to your wallet. ADA as enforced by the EEOC allows drug testing post offer. You may wish to visit the EEOC website for the most recent FAQ's. Mean while you probably should be working toward putting a drug testing policy in place to avoid this type of problem in the future. Just my two cents...

LindaS · March 2003

Without a formal written policy, you could be opening yourself up to a litany of problems. In addition, once you have a written policy, make sure you follow it to a "T"!!! I have seen a variety of instances with employers that "pick and choose" how they administer the program and the outcomes are NEVER good for an employer. Are you unionized? If so that would be a whole other area of problems.

Good Luck!

WOCO Frank · March 2003

I would never request a drug test under "reasonable suspicion" unless I had the employee's signature on some type of acknowledgment, either on the application or in their new-hire packet.

LindaS · March 2003

We supply new employees with a copy of our substance abuse policy upon hiring. I go through it with them and clearly explain the "fitness for duty" portion. They are then required to sign it and I provide them with a copy of the signed document and the original goes in their personnel file.

WT · March 2003

Everybody wants a written policy for everything anymore but that does not necessarily end all problems. The Employer has a duty to provide a safe work place. They also have a right to expect employees to report to work in a "fit for duty" condition. There is an implied right for employers to take action regarding those two issues. I have tested individuals without a written policy. If you have a union, they may never agree on a written policy. However, you must carefully document your "reasonable suspicion" and expect to be challenged on this point. If you have a positive test in hand, the only means to fight discipline will be issues such as sufficient reasonable suspicion or procedural items such as chain of custody or requests for a split sample so the employee can have another lab test the same speciman.

LindaS · March 2003

When you have terminated these individuals, have they then been awarded unemployment? I know FOR A FACT that here in WI you not only have to have a written policy dictating what will happen to an employee in the event of a positive drug test but you also have to enforce it to a "T". I have seen MORE THAN ONE instance of an employee being tested, having a positive result, being terminated and being awarded unemployment because the employer either didn't have a written policy or did not completely enforce it.

I understand about the need to provide for a safe work place for other employees and do not necessarily agree with the above scenarios but in our litigous society, not having a policy can create alot of headaches and can become quite expensive.

One last thing, we have a written policy and we are also unionized. There were issues when this policy was enacted but our "fitness for duty" portion states that for an employee to be sent for a screen, two management people or one management person and one supervisor have to agree that the person is impaired. We also do annual training, through our EAP, for supervisors and management on what things to look for.

WT · March 2003

To answer your question, we have had claims and hearings but have not paid unemployment on a drug related termination. This may not hold true in your state. However, we have tried to rehabilitate the employees rather than looking for termination. Termination was a last resort and by that time we could prove an honest effort to give employees a chance. Typically, the employee and union rep are brought in with the employee being offered a chance to clean up. This is summed up in a "last chance agreement" giving both employee and employer clear rights and responsibilities. If the employee and union will not agree to this "last chance agreement", then the option is termination. All of this puts the employer in a much stronger position. If the employee cleans up, everybody wins. If the employee goes back to substance abuse, the agreement aids the employer in termination and if the employee and union refuse to sign, the employer can claim that there is not even an intent for the employee to clean up.

CD PHR · March 2003

Many states have their own laws on testing, so the answer largely depends on which state you are in.

Even if your state has no restrictions on testing, IMO you are taking a big risk unless the evidence of impairment is quite compelling. ("Compelling" would be tangible evidence such as slurred speech, staggering, etc., witnessed by more than one person.)

If the employee is in fact impaired, he may very well refuse to submit to testing. How would you respond to the refusal? Normally this would be dictated by your policy. If you terminate him for refusing to submit to testing, he may accuse you of some sort of discrimination -- and you will not have a test result, a policy, or even a prior precedent to back up your actions.

Remember that reasonable suspicion testing is reactive rather than proactive in nature. If you are truly concerned about substance abuse in your workplace, consider implementing a comprehensive testing program that includes preventative measures like preemployment and random testing.

Good luck.

Drug Testing Without Drug Policy

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