Last updated: September 21, 2020
With the growing rate of both prescription and illicit drug use in the workplace, many companies around the country are increasingly turning to mandatory workplace drug testing to maintain workplace safety. However, it is important to remember that there are no federal regulations regulating workplace drug testing for private companies. In fact, many judges in federal courts across the nation, as well as the Justices of the Supreme Court, place strong burden on employers to ensure that their employees’ rights to be safe from “unreasonable searches and seizures”, as stipulated in the Fourth Amendment, are not violated. This requires a documented and published drug testing policy.
There is a growing consensus among members of the judiciary and legislators that workplace drug testing program is beneficial to public safety and the long-term economic health of companies (and consequently, the nation). After all, drug use costs companies tens of billions of dollars every year through loss of productivity, absenteeism, injuries, death, and compensation claims, among others. Even the Supreme Court has set a precedent when it declared employee drug testing is permissible to protect the interest of the general public. As such, many states and local authorities have enacted legislations to assist companies to legally conduct drug tests on their employees.
Because of the legal complexity of drug testing and compliance laws, you need to perform extensive due diligence before implementing any drug policies to ensure they do not violate any federal, state or municipal statutes, in order to avoid any HR-related lawsuits. Obviously, a simpler, more efficient option is to hire a company like USAMDT to handle that for you..
If you are a federal contractor or a recipient of federal grants, you are required to comply with the Drug-Free Workplace Act of 1988, which mandates workplace drug testing to ensure a safe working environment. In addition, under the Omnibus Transportation Employee Testing Act of 1991, the Department of Transportation (DOT) also mandates drug testing for “safety-sensitive transportation employees,” which includes operators of mass transportation vehicles, commercial vehicles, aircrafts, and railroad equipment.
In all other instances, private companies must develop a specific written drug testing policy that then must be presented to, and agreed upon, by employees at the time of hiring. For policies which are created after hiring, employees must provide consent before they are legally required to submit a drug test, but in most states it is legal to fire employees who decline to give consent for new or updated policies.
Types of workplace drug testing
Pre-employment drug testing
This is the most common type of drug testing because many companies test potential employees before hiring them in an effort to weed out bad candidates. It’s important that pre-employment drug testing be performed consistently for all candidates at the same phase in the hiring process to avoid the appearance of discrimination. Some states also require that testing can only be performed after a conditional offer of employment has been made.
Random drug testing
Employers may subject any employees to random drug tests at any time, but the key word here is random. Many companies, even those outside of the transportation industry, adopt the policy advocated by DOT, which stipulates that all employees, regardless of job titles or seniority, are placed in a single pool. This ensures all employees have an equal chance of being selected. We use computer software to manage the pool selection and draws to ensure that all employees will potentially be tested without the risk of tampering. Since there is no advance notice for these tests, they act as a powerful deterrent against workplace drug abuse.
Reasonable suspicion drug testing
Reasonable suspicion drug testing requires employers to have genuine, factual and verifiable reasons that an employee is or has been taking, or are in possession of drugs. Reasons based on speculation, guesswork or stereotyping will open employers to expensive and embarrassing lawsuits. Examples of legitimate reasons for reasonable suspicion tests include:
- Erratic behavior
- Visible verbal or physical impairment
- Report of usage or possession of drugs from another employee
Post-accident drug testing
Contrary to what you may have heard, post-accident drug testing is still legal. Since employers are liable for injuries in the workplace, they have the right to find out if drug use played a factor in any accident. There was some confusion recently over post-accident tests following an amendment to the Occupational Safety and Health Administration’s (OSHA) Recording and Reporting Occupational Injuries and Illness regulations (Final Rule / 29 CFR 1904). In an effort to encourage accident and injury reporting by employees, OSHA required that employees filing such reports should not be penalized, however, they can still be drug tested.
Return to duty drug testing
Return to duty drug testing is performed on an employee who has previously failed a drug test or violated a company’s internal drug policy. The test is conducted at a scheduled time and date, usually after the completion of sanctions or upon returning to active duty—subject to the completion of an evaluation by a Substance Abuse Professional (SAP).