Last updated : November 11, 2024
If you suspect an employee is using drugs, either on their own time or during working hours, this can create a serious problem for workplace safety. Employees that have a dependency issue tend to have poor job performance, problems getting to work on time, or they may have an absenteeism issue. It also creates a workplace liability. Any company with employees under the influence is more volatile and dangerous.
Follow company protocol for reasonable suspicion
Your company does have a drug free workplace policy, right? If not, you’re behind the proverbial eight ball.
Employee handbooks should have a policy regarding drugs and alcohol. If an employee is caught in the act while on the clock, you must use your company’s disciplinary procedures to resolve the issues. Your company handbook should outline specific punishment for drug use. However, before you take any action, you must have documented justification to legally support your claims. The drug test that follows is essential for confirming or denying an employee’s usage.
Put suspicions to rest with a drug test
Due to the potential legal pitfalls, it is important to comply with all federal and local laws. Too often, a disgruntled ex-employee brings a suit against a former employer after being fired for drug use in an attempt to extort money, or even just to hurt their reputation. Because of this, there is no room for error.
There are three common types of drug testing utilized today: saliva, urine, and hair. Urine tests are by far the most popular because they are the lest expensive. Saliva and hair drug tests are a bit more costly, but they are easier and offer the benefit of not requiring a secure restroom for collection.
Employees involved in transportation are governed by the Department of Transportation’s DOT drug testing guidelines, while other employers have more leeway to create their own drug testing policy as long as it complies with state and federal laws. DOT testing requires a 5-panel test that screens for amphetamines, cocaine, marijuana, opiates and phencyclidine (PCP), five of the most commonly abused drugs, while other employers may use any type of test as prescribed in their drug free workplace policy.
Testing at the right time
You must have a documented drug policy that outlines exactly when, and under what circumstances drug testing will be conducted. The most common scenarios for drug testing are:
- pre employment
- random drug testing
- reasonable suspicion
- post-accident
What about “legal” drug use
Some states have recently legalized marijuana, leading employees in those states to mistakenly believe that they have a free pass to toke up. Nothing could be further from the truth.
The courts have consistently upheld employers’ rights to make hiring/firing decisions based on drug use, even in states where marijuana is legal. The employer retains the right to test employees in order to maintain a drug-free workplace. Furthermore, it doesn’t matter if an employee or prospective employee only uses the drug at home, if he or she tests positive, the employer is legally entitled to take disciplinary action, according to the company’s existing drug protocol. That may include:
- refusal to hire
- referring the employee to an Employee Assistance Program
- zero-tolerance dismissal
What if an employee won’t cooperate?
No one is going to be happy about taking a drug test because it means they have to squeeze one more thing into their day. While an employer cannot force an employee to take a drug test, if they refuse, then they can be fired on the spot. To protect your company, make sure to have a clearly documented drug free workplace program in place and follow it to the letter.
Documentation is necessary
Document everything about your suspicion of drug use, including times, dates, performance, and any supporting evidence. Any accident or documented reasonable suspicion should trigger a drug test under most programs. Creating that paper trail is important, especially if there is a lawsuit. You need to be able to show that you followed company policy and did everything you could to protect others while not harassing or singling out an employee.
