Those with a drug use problem – including prescription as well as illegal drugs – pose many risks and challenges to both coworkers and their employers.
These can include safety risks, missed time, poor performance, attitude, and increased medical and worker's comp coverage. Drug testing laws vary by state, but the federal government has established guidelines.
Considering the statutes governing civil rights, misuse of drug testing or confidential information can subject a company to legal liabilities. There are some ways to ensure employee drug testing is handled professionally.
Written Policies on Drug Use
Your company handbook and should clearly state your company policies on drug and alcohol use and procedures for testing.
Catching an employee physically using drugs or in possession of drugs on company time or premises is usually grounds for dismissal anywhere. But all policies regarding drug use should be spelled out on the company's internal websites, employee literature, and verbally or otherwise during new hire orientation, at regular training intervals, and whenever drug use is a concern.
Many employers will present each employee with a written copy of company drug policies and require them to read, sign, and date it. This way there is no question regarding company policies.
Legal Medication
Most employees at one time or another use prescribed or over-the-counter drugs as sleep aids, pain killers, or to fight illness or infections. In most cases the employee is within their rights, and those with disabilities or chronic conditions may even feel discriminated against.
Medicines that cause drowsiness should not be used by personnel such as forklift drivers. Certain medications could also impair judgement or cause erratic behavior. Most employers don't regard prescription drug use as misbehavior until it seriously affects employee performance or safety.
Possible disciplinary actions depend on the situation and the risk of endangering other employees. Medical information is protected under the Health Insurance Portability and Accountability Act (HIPAA).
Illegal Drugs
Employees who are under the influence of prohibited substances at work are not covered by disability laws. The employee should be dealt with according to policy or per the determination of HR. Reprimands or suspension might be sufficient for those who are not a safety risk and not repeat offenders.
Drug Testing Employees
Many companies drug-test new hires as part of the screening process. Drug testing existing employees can be a tricky situation exposing the company to legal action.
Drug tests are intrusive and can be seen as a violation of privacy. Employees terminated for drug use may sue on the basis of faulty testing, lack of cause, violation of state or federal guidelines on testing or privacy, and even violation of a company's own policies (which could show discrimination).
Legal damages can cost many thousands and spoil a company's reputation. Employees who fail drug tests can even claim workman's comp if they can prove the injury was the company's fault.
When Testing is Appropriate
Those who operate vehicles or machinery or tools which are potentially dangerous, or in positions such as security, should be tested in the event of accidents at work, moving vehicle violations traveling to or from work, employees who have had prior drug problems, and any employee who is suspected of or reported as using illegal drugs. Employees who refuse a drug test under any of these conditions may also be cause for dismissal.
Your company will be on the strongest legal ground if your primary motive was to ensure the safety of others, and not simply fishing for evidence to warrant terminating unpopular or under-performing employees.