Last updated: October 18, 2021
Why consider reasonable suspicion drug testing? There are two basic purposes for including this type of testing in your Drug‑Free Workplace Program (DFWP):
- Reduce or eliminate liability – the exposure of the company to lawsuits by employees, the public, and government agencies; and
- avoid accidents and foster a safe environment, thereby protecting employees from their own misdeeds and that of others.
Before reviewing reasonable suspicion drug testing, let’s address the requirement itself: Private employers are not required to have a drug-free workplace policy of any kind. However, any company that performs as a federal contractor or grantee or is a safety- and security-sensitive industry (or has positions that are defined as such), must follow the drug-testing requirements of the appropriate branch of the government under which they operate. Examples are DOT, DOD and the NRC.
Also, under Executive Order 12564 of September 15, 1986, federal employees involved in law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of public trust are subject to mandatory testing.
In addition, the Omnibus Transportation Employee Testing Act of 1991 requires specific safety-sensitive industries. to test employees for both drugs and alcohol. Specifically, all safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. Any employer whose business is regulated by one of the afore-mentioned agencies is covered under the Act. If a company needs to determine if they are subject to any testing applies under the DOT, they can access the decision tree provided by the Department of Transportation. Documents and resources are also available at https://www.transportation.gov/odapc. A Drug-Free Workplace Toolkit is available at the government web site, SAMHSA (Substance Abuse and Mental Health Services Administration).
Most state and local law enforcement and emergency service providers are also required to undergo drug testing. The laws and regulations vary among states and agencies.
So, as a responsible company that is not required to do testing but wants to ensure not only the health and safety of its employees, but the integrity and image of its brand, what type of testing should you consider? In developing a Drug-Free Workplace Program (DFWP), the company must research any pertinent local and state mandates. In creating a set of rules and guidelines, the business might consider using all or part of a government program that is already in place. If any employees are covered by a collective bargaining agreement, their officers should be part of the process.
In the framework of forming a DFWP – and how reasonable suspicion drug testing fits into the system ‑ hiring the right employee can save the costs of firing someone and having to replace them. A study of Employee Replacement Costs published by the Institute for Research on Labor and Employment in a Working Paper #201-10 dated March 2010, states “…in 1981, Merck & Co., a large pharmaceutical company, estimated the costs of turnover to be 1.5 to 2.5 times the annual salary of an employee, depending on the job. This study included, for example, a finding that in a new employee’s first 14 months, essentially five and a half months of time was lost.” Obviously, potential employees who abuse drugs are not only detrimental to the company’s bottom line, but can lead to poor morale, workflow errors, accidents and unscheduled leave that affects productivity.
Pre-employment drug testing is a common first step. However, developing a testing program after someone is employed is ensures that a safe work environment is maintained. Here is the focus: reasonable suspicion drug testing and post-accident drug testing are useful tools to include in your DFWP.
Post-accident drug testing is guided by strict criteria and is often called “post-incident” drug testing. Usually fatal accidents, police citations, property damages exceeding a specific amount, are triggers for the testing, which should be done within 12 hours of the incident. Twelve hours is considered a usual time lapse for the clearance of drugs in the system.
Now, how does reasonable suspicion drug testing fit into the development of a DFWP. There are some “soft” indicators, which could be considered subjective, such as erratic behavior or a pattern of abnormal conduct. This is wholly dependent on personal knowledge of the individual and the “normal” behavior that is observed on a day-to-day basis. Other factors are more objective:
- Direct observation of drug use or physical symptoms of drug or alcohol use
- An arrest or conviction for a drug-related offense, or identification of an employee as the focus of a criminal investigation involving drug use, possession or trafficking.
- Independently verified information provided by credible sources
- New evidence that an employee has falsified or tampered with a previous drug test
The Department of Commerce is a good resource and is a source for this article.
The initial development and evolution of a drug-free workplace program is not a static blueprint, but a dynamic response to the ever-changing workplace environment. It is important to review it regularly – along with any laws or regulations that may have been modified or created – and alter guidelines as needed. The accumulation and analysis of the data can serve as a prompt to adapt to and expand those actions that work best for your organization.