Last updated: January 30, 2023
You might think the only thing that’s risky about employee drug testing is if you don’t!
Enforcing a company drug testing program makes it clear to employees that drugs won’t be tolerated. There’s no doubt that employee drug testing makes the workplace or job site a safer place. Employers who implement a drug-free program see fewer accidents and less absenteeism. Productivity increases and, depending on where the business is located, they may receive a discount on workers’ comp insurance.
Employee drug testing can be risky, though. We’ve put together a list of seven common mistakes that employers make that could put them in danger of a potential lawsuit.
The DOT test isn’t for everyone
If you’re regulated by the DOT (Department of Transportation) to drug test your drivers, the DOT test is just for your drivers—and any other personnel that meets the safety-sensitive workforce criteria. Some employers mistakenly believe that the DOT drug and alcohol testing policy can apply to everyone working for the company.
That can be risky because only the safety-sensitive workforce is regulated by the DOT. State and local drug testing laws regulate everyone else. You could be out of compliance if you’re following DOT drug testing policies for non-DOT personnel.
State and local government
State and local laws regarding non-DOT drug testing can seem vague and all inconclusive or extremely specific. Some states don’t allow certain drug testing methods. Moreover, marijuana legalization seems to get on the ballot somewhere with each passing election. The laws regulating it differ from state to state. Both the State of Nevada and the City of New York have decided to ban marijuana from pre-employment drug tests.
It’s wise for employers to stay abreast of any changes to the laws in their state.
Testing without a policy in place
If you’re under the assumption that you don’t actually need a drug testing policy to drug test, you’re mistaken.
You need a written policy in place first thing. Next, inform all employees about it before you begin drug testing. Instruct them to read the information provided carefully. Furthermore, have them sign a policy receipt acknowledging they received and understand the consequences of a positive drug test.
Moreover, make sure your policy is written to include specifics.
- Type of drug testing method
- Drugs on the test panel
- Testing situations
- Protocol to follow for a positive, negative, or inconclusive result
- Protocol regarding refusal to test
Not having a written policy in place leaves you open to a potential lawsuit. Be prepared should a disgruntled employee try to cause problems.
In the event of a positive drug test result, employers should strictly adhere to their positive test result policy. It can be tempting to overlook a long-term or star employee’s positive test result. However, tread lightly in such a case. You might be unwittingly setting yourself up for a discriminatory lawsuit.
If you’re suspicious, act on it
Is reasonable suspicion included in your drug testing policy?
If presented with reasonable suspicion of drug use, you’ll want to test the employee as soon as you can. Why? Because the test is more likely to yield a positive result if it’s given sooner than later.
Also, you don’t want to let an employee’s excuse as to why they are acting impaired sway you from following company policy. They could range from having a hangover or not getting enough sleep to having a reaction to allergy medication or depression due to (insert sad story here).
Train your supervisors well
When the policy is ready to put in place, make sure your supervisors are well trained. They need to completely understand the drug testing policy and how to enforce it.
- Make sure supervisors have read the policy and don’t think they can leave it up to HR (Human Resources) to enforce it
- Teach supervisors the documentation that’s required to correctly report reasonable suspicion
- Supervisors should recognize the signs of drug impairment for the drugs on your company test
Proper training is essential to answer all questions so your supervisors are comfortable with the policy and all procedures.
Refusing to test
Many companies fail to define the term “refusing to test” or to provide disciplinary action for it. This isn’t wise because employees who use drugs will simply engage in evasive behaviors to avoid taking a test.
The most common example of this is a delay tactic. Employees simply provide excuse after excuse to delay reporting for the drug test as long as possible.
Include a clear and concise definition of refusing to test. It may include any or all of the following:
- Excessive delay in reporting
- Refusing or failing to provide a specimen
- Failure to provide a medical explanation for not providing a specimen
- Adulteration or substitution of a specimen
- Failure to complete paperwork
- Leaving the test site before completing the test
- Refusing to submit to a second test if required
- Not cooperating with the process
Keep it random
Companies that have random drug testing policies in place may not compromise the procedure in any way by trying to specify which names come up on the list.
No place for risky business
Drugs have no place at work—that includes impaired employees.
Employee drug testing is a valuable resource for employers. It encourages employees to live a drug-free lifestyle and promotes a safe work environment. Don’t risk being pulled into court because your drug testing policy isn’t up to par.
Make sure your non-DOT policies outline the specifics completely—in writing.
Hiring a professional to look them over—or write them for you—ensures you’re in compliance with state and local laws. Moreover, make sure your staff is up-to-date with your policies and procedures by scheduling training and refresher courses.
Follow through with consequences put in place in the event of a positive test result. Don’t forget to specifically define the phrase “refusal to test.”
Lastly, consider adding a human element to the mix. Providing information about drug rehabilitation programs in your area along with a word of encouragement could provide the spark of hope that someone needs to seek help.