How to set up and implement an effective and lawful drug-testing program

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1 How to set up and implement an effective and lawful drug-testing program Safety-conscious roofing contractors often choose to implement a drug-testing program for their employees. Roofing contractors with federal contracts worth $25,000 or more annually are required to have drug-free workplace programs. Many states require roofing contractors who perform work on state-funded projects to comply with drug-free workplace acts. Some states offer discounts on workers compensation insurance premiums for roofing contractors who maintain a drug-testing program in accordance with the state requirements. Regardless of whether you are in a state that offers a discount on workers compensation premiums for maintaining a drug-testing program or whether you are a federal or state contractor who must comply with a drug-free workplace act, implementing a drug-testing program goes a long way toward both ensuring your work sites are safe and improving your company s productivity. Before creating a drug-testing policy, you must first establish an attitude regarding illegal drug use by employees. Many roofing contractors decide to take a zero-tolerance approach to employee drug use. Testing positive for illegal drug use is grounds for immediate discharge for these roofing contractors. However, the law does not require a zero-tolerance approach to employee drug use. Indeed, other roofing contractors may decide to implement a drug-testing program that provides employees with a second chance. These roofing contractors elect to prohibit illegal drug use, but rather than discharge offending employees for their first offense, employees who test positive for the presence of illegal drugs are given the opportunity to successfully complete a drug rehabilitation program as a condition of continuing employment. -1-

2 DRUG-TESTING PROGRAM/2 These employees may be subject to return-to-work testing, and subsequent violations of the drug-testing program are met with immediate discharge. Whether you decide to implement a zero-tolerance policy or a policy that allows employees a second chance, any drug-testing policy or program necessarily implicates employees privacy rights. Accordingly, it is important legal issues be given due consideration when creating a drug-testing program. To reduce employees expectation of privacy, roofing contractors that have yet to implement a drug-testing program but desire to do so should provide their employees with at least 30 days written notice that a drug-testing program will be implemented. Employees should be given a copy of the actual drug-testing policy and procedures in a memo format at least 30 days prior to implementation of the drug-testing program. All employees should be given an acknowledgement and consent form that has employees acknowledging receipt of the policy and agreeing to be tested for the listed drugs at any time during their employment. In an at-will employment relationship, a roofing contractor is permitted to terminate the employment of those individuals who fail or refuse to consent to drugtesting. Employees who previously provided consent but refuse to submit to the test when it is time for the testing also may be terminated. Those employees who consent to the testing will have an extremely difficult time arguing their privacy rights were violated when they are subsequently made the subject of a drug test according to the terms of the policy. Besides addressing privacy concerns, it is also important that any drug-testing program contain other certain key elements. The policy should identify the substances that may be tested, including the brand or common name, if any, and the chemical name of any drug or its metabolite to be tested. The drug-testing policy should discuss the type of testing to be - 2 -

3 DRUG-TESTING PROGRAM/3 conducted, the testing procedures, consequences of a positive test and consequences of refusing to undergo testing. You have the option of conducting pre-employment testing, post-accident testing, reasonable cause testing, periodic or scheduled testing, and random testing. To avoid any concerns that may arise under the Americans with Disabilities Act, your drug-testing policy should explain that pre-employment testing will only be conducted after a conditional offer of employment has been extended to the employee. A drug-testing policy that provides for postaccident testing should state that those employees whose actions or failure to act caused or contributed to the accident will be the subject of testing. If you are a roofing contractor who desires to implement reasonable cause testing, your policy should state what constitutes reasonable suspicion, and your supervisors should be trained to identify signs for drug use in the workplace. Periodic testing is most often conducted with an annual physical examination and is the least controversial type of testing for roofing contractors. Roofing contractors conducting random testing should include in their policies a statement that employees will be selected at random without suspicion and without advance notice of when the test will take place. A thorough drug-testing policy will inform employees that they will be subjected to an initial test and a confirming test if the initial test result is positive. Employees should be informed they have the right to obtain all information and records related to the testing. Roofing contractors may also choose to provide their employees with an opportunity to explain the test results. It is also customary for roofing contractors drug-testing policies to allow employees a small window of time within which to request a retest of any specimen that is deemed positive. These roofing contractors often also allow employees an opportunity before the drug test to - 3 -

4 DRUG-TESTING PROGRAM/4 identify any legal or prescription drugs the employee is currently taking that may affect the test results. Drug tests results should be documented and kept in a file separate from personnel files. It is customary that drug test results be kept with other confidential medical information. Documents pertaining to drug-testing should be maintained for at least one year from any adverse employment decision taken against an employee based on drug test result. A drug-testing policy and program may also include instituting an employee assistance program (EAP). An EAP provides drug and alcohol dependency evaluation and referral services for substance abuse counseling, treatment or rehabilitation. An EAP can be provided in-house or through a contracted program. The actual implementation of a drug-testing program must include a procedure for the collection and handling of the specimens to be tested and must preserve the chain of custody and ensure the specimens are not mislabeled, switched or tampered with. The specimens should be tested or analyzed by a laboratory that preserves the chain of custody and competently performs the appropriate analysis so the results reported are accurate and reliable. Roofing contractors should establish a relationship with a certified and reputable drug-testing laboratory. Before any drug-testing policy is implemented, roofing contractors should be sure to consult the law in the state in which the testing will occur. (Union contractors will also have to negotiate with the union over the terms and implementation of a drug-testing program.) Various states have adopted drug-free workplace acts that require roofing contractors contracting with the state to include certain elements in their drug-free workplace policies. Some states allow drug testing only under limited circumstances. For example, Connecticut only permits employers to - 4 -

5 DRUG-TESTING PROGRAM/5 require employees to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs that adversely affects, or could adversely affect, job performance. It is, therefore, important that you consult with your attorney before putting your policy into practice. # # # - 5 -

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