Chapter 6 Substance Abuse and Drug Testing in the Workplace

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1 Chapter 6 Substance Abuse and Drug Testing in the Workplace A. Nature of the Problem and Purposes of This Chapter The existence of drug and alcohol abuse in the workplace is widely recognized as a severe problem for employers. The National Institute on Drug Abuse has reported that between 10% and 23% of all employees abuse drugs on the job, and it concluded that drug abuse is the most common health hazard in the workplace. The financial drain on employers has been measured at over $100 billion annually, including all direct and indirect costs. The adverse consequences of substance abuse in the workplace are myriad: Increased accidents and injuries with resultant increased workers compensation claims Increased theft of company or client property Increased absenteeism and tardiness Increased use of and ultimate cost of medical and health benefits Adverse effect on the emotional well-being of employees, their interpersonal relationships, and employee morale Increased risk for injuries to client s employees or property Increased potential for liability by employers who employ persons with known substance abuse problems The staffing industry is not immune from increasing concern with and adoption of policies to prevent or cure the problem of substance abuse in the workplace. Indeed, although many staffing firms have little or no interest in testing their employees, an increasing number of companies that test their own employees are beginning to require temporary employees assigned to them to be screened as well. The primary purpose of this chapter is to provide legal and practical information to those staffing firms that are attempting to respond to client requests for drug testing, or that anticipate receiving such requests in the future. B. Legal Implications of Drug Testing 1. General At present, no state or federal statute completely prohibits a private employer from utilizing drug testing to address the problem of substance abuse in the workplace. The implementation of drug testing is therefore not per se illegal. This does not mean that drug testing presents no legal issues or that employers have no fear of liability if they do drug-test. On the contrary, many states have enacted legislation regulating drug testing, and there are numerous constitutional provisions, statutes, and other legal rights that may be relied upon by employees or applicants who seek to challenge drug testing or decisions based on the results of a drug test. In short, drug testing of employees or applicants presents real risks of potential liability, and it is vital that care be taken to comply with applicable legal provisions and constraints before embarking on a drug-testing program. Legal challenges to drug and/or alcohol testing are likely to be made on one or more of the following bases: federal and state constitutional provisions; federal and state antidiscrimination laws; state and local

2 drug-testing laws; and state common law claims such as invasion of privacy, defamation, or wrongful discharge. 3. Federal and State Antidiscrimination Laws Another source of legal challenges to drug testing may be derived from federal and state antidiscrimination laws, which prohibit employment discrimination. a. Disability Discrimination Laws Most states prohibit employers from discriminating against individuals because of their handicap or disability. (See Chapter 1.) Federal law also prohibits discrimination based on a handicap or disability. The Americans With Disabilities Act, enacted in July 1990 and applicable to employers with 15 or more employees, makes it unlawful for a private employer to discriminate against an individual based on that individual s disability. The ADA not only protects those who are actually and currently disabled under the ADA, but also those individuals who have a record of disability, those who are regarded as being disabled, and those who are known to have a relationship or association with another who is known to have a disability. An employee or applicant who is currently engaging in the illegal use of drugs is not protected under the ADA, However, when an employee or applicant is no longer engaging in illegal drug use and is participating in or has participated in a supervised drug rehabilitation program, he or she will be protected under the act. (See Chapter 1, Section A.3.f.) The federal Rehabilitation Act of 1973 also prohibits disability discrimination by federal contractors and subcontractors and recipients of federal financial assistance. (See Chapter 1, Section B.2.) i. Addiction as a Disability. Users of illegal drugs who have been successfully rehabilitated or who are participating in a supervised rehabilitation program and are no longer using drugs will be protected against discrimination in private employment by both the ADA and the Rehabilitation Act. People who are erroneously regarded as engaging in illegal drug use are also covered by both laws, as are alcoholics who are adequately performing their jobs. However, the ADA specifically excludes, and amended the Rehabilitation Act to also exclude from coverage, alcoholics who are engaging in unsatisfactory performance or behavior, as well as any employee or applicant who is currently engaging in the illegal use of drugs. In many states, an individual who is addicted to drugs or alcohol is considered disabled and is entitled to protection under the disability discrimination laws. The Court of Appeals for the Ninth Circuit has held that an employer violated the ADA when it refused to hire an employee who had previously worked for the employer but had been terminated two years earlier after failing a drug test. When the employee reapplied, he presented evidence that he had been successfully rehabilitated. The court held that the employer s policy or practice of not rehiring an employee who had previously tested positive for drugs violated the ADA. Recreational or casual users of drugs or alcohol are unlikely to be found disabled or protected by either federal or state disability discrimination laws. In addition, many states protect an individual who is perceived to be disabled, regardless of whether he or she really is. For instance, the New York State Appellate Division has held that an applicant who was denied employment after testing positive for drug use on a pre-employment drug test could maintain a proceeding under the state s human rights law as an individual who was perceived as being disabled. A staffing firm should consider state laws against discrimination, as well as the ADA. Most states have laws that protect employees against discrimination on the basis of a disability, and some states specifically include as a protected disability alcoholism, drug addiction, or both.

3 ii. Disabled Employees Must Be Able to Perform. An employee who is disabled (by drug addiction or otherwise) must be able to perform his or her essential job functions, with or without accommodation, as well as comply with the employer s policies and rules. (See Chapter 1, Section A.3.f.) As a general proposition, even if an individual is addicted to drugs or alcohol, he or she will not be protected by the disability discrimination laws if he or she is unable to perform satisfactorily the position sought, and that includes performing the essential functions of the job, gaining access to the work site, and following punctuality and attendance rules and other rules relating to employee conduct. iii. Accommodation. The ADA, the Rehabilitation Act of 1973, and the laws of many states require an employer to make reasonable accommodations for an employee s disability or handicap, unless doing so would impose undue hardship on the employer. Reasonable accommodations may include leave for treatment, a reduced schedule or alternative schedule related to treatment, etc. In a case interpreting the Rehabilitation Act, a court found that an employee who had undergone treatment for alcoholism was improperly discharged for absenteeism. The employer had considered the employee s absences before the treatment as well as those after the treatment, which were unrelated to his alcoholism. The court held that by utilizing the employee s alcohol-induced transgressions as a factor, the employer failed to reasonably accommodate his condition. In 2002, an employee filed suit against a staffing firm alleging that it had discriminated against the employee on account of his disability. The employee applied for a temporary assignment as a commercial truck driver but tested positive for THC (an indicator of marijuana use). The employee stated that he was HIV positive and was taking various medications, including Marinol or synthetic marijuana. The staffing firm required the employee to provide a medical certification to determine whether he could drive a commercial truck while taking Marinol without posing a direct threat to himself or others. In the meantime the client canceled the temporary staffing order. The court held that the employer had not violated the ADA and that it was within its rights to request the medical certification. In addition, the staffing firm had no control over the cancellation of the order, and there was no evidence that the order was canceled to avoid hiring the employee. 4. State Common Law Theories In addition to challenging the legality of drug-testing programs on the basis of constitutional or statutory provisions, employees may assert other claims as well. These claims may include: invasion of privacy, negligence, defamation, intentional infliction of emotional distress, wrongful discharge, and breach of contract. Each of these is discussed below. 5. State and Local Drug-Testing Laws Arizona Arizona permits drug testing for any job-related purposes consistent with business necessity, including the following: Pre-employment applicant screening Random testing Investigation of possible individual employee impairment Reasonable suspicion that an employee may be affected and that drug use may affect job performance or the work environment

4 Investigation of workplace accidents As part of a postrehabilitation program For maintenance of safety, productivity, quality of work, or security of property or information The law contains specific rules regarding the scheduling of tests, including testing as part of compensable work time, payment for testing, labs that may be used, and confirmation of positive test results with a gas chromatography and mass spectrometry test or another comparable method. Testing must be carried out within the terms of a written drug and alcohol policy that is distributed to all employees. The policy must contain the following information: A statement of the employer s drug and alcohol policy Which employees are subject to testing When testing will be required and what drugs will be tested for A description of the testing methods and collection methods to be used Any adverse personnel actions that may be taken for refusing to take the test or based on a positive result The right of an employee to obtain the written test results upon request The right of an employee to explain a positive test result in a confidential setting The confidentiality of test results If the employer institutes a drug-testing policy, all compensated employees, including officers, directors, and supervisors, must be drug-tested. The employer is protected from litigation so long as the employer acts in good faith and according to state law. Employers whose drug policy and testing program comports with Arizona law may refuse to place medical marijuana users in safety-sensitive jobs and may discipline an employee when the employer has a good faith belief that the employee is impaired by, or improperly possessed, marijuana at work or during work hours. Arkansas If an employer implements a drug-free workplace program in accordance with Arkansas law, which includes notice, education, and procedural requirements for testing for drugs and alcohol, the employer must require employees to submit to a test for the presence of drugs or alcohol after a conditional offer of employment, upon reasonable suspicion of drug or alcohol use, after injury-producing workplace accidents, and if required as part of a routine fitness-for-duty policy. The employer may also require any other drug testing beyond the minimum as permitted by law. A covered employer may not require applicants or employees to take a physical, medical examination, or drug test unless such test and copy of the results are provided at no cost to the employee or applicant. If a drug or alcohol is found to be present in the employee s system at a level proscribed by statute or by rule approved pursuant to Arkansas law, the employee may be terminated and forfeits eligibility for workers compensation benefits. However, the employer must notify all employees that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in the employee s body. If an injured employee refuses to submit to a test for drugs or alcohol, the employee forfeits eligibility for workers compensation benefits. If an employee is terminated as a result of alcohol or drug testing, the employee is entitled to contest the test results before the Arkansas State Department of Labor.

5 Before testing, and one time only, an employer that implements a drug-free workplace program in accordance with state law must give all employees and job applicants for employment a written policy statement regarding the employer s testing procedures. The policy must contain the information that follows: A general statement of the employer s policy on employee drug or alcohol use, which must identify the types of drug or alcohol testing an employee or job applicant may be required to submit to, and the actions the employer may take against an employee or job applicant on the basis of a positive confirmed drug or alcohol test result A general statement concerning confidentiality Procedures for employees and job applicants to confidentially report the use of prescription or nonprescription medications to a drug-testing review officer after being tested, but only if the testing process has revealed a positive result for the presence of alcohol or drug use The consequences of refusing to submit to a drug or alcohol test A representative sampling of names, addresses, and telephone numbers of employee assistance programs and local drug or alcohol rehabilitation programs A statement that an employee or job applicant who receives a positive confirmed test result may contest or explain the result to a drug-testing review officer A list of all drug classes for which the employer may test A statement informing the employee or job applicant of the employee s responsibility to notify the laboratory of any administrative or civil action brought that is related to the employer s drug testing A statement regarding any applicable collective bargaining agreement or contract and any right to appeal to the applicable court A statement notifying employees and job applicants of their right to consult with a drug-testing review officer for technical information regarding prescription or nonprescription medication Employers are not required to test employees for drug or alcohol use. However, an employer who voluntarily chooses to establish a drug-free workplace in compliance with Arkansas law, a so-called covered employer, gets certain benefits but is sometimes required to conduct drug or alcohol tests. For example, after making a conditional offer of employment, a covered employer must test job applicants for drugs, and may use a positive confirmed drug test or the applicant s refusal to be tested as a basis for not hiring the applicant. Limited testing of applicants, only if it is based on a reasonable classification basis, is also permissible. A covered employer also may be required to test employees for drugs or alcohol when there is observed behavior that gives rise to a reasonable suspicion that the employee is using a controlled substance. In addition, if employees are routinely scheduled for fitness-for-duty medical examinations, a covered employer must require employees to undergo drug and alcohol testing as part of the medical examination. All information, reports, and drug or alcohol test results, written or otherwise, received by the employer through a drug- or alcohol-testing program are considered confidential communications. Employers, laboratories, employee assistance programs, and their agents who receive or have access to information concerning drug or alcohol test results must keep all information confidential. The release of such information under any other circumstance is authorized solely pursuant to a written consent form signed voluntarily by the person tested, unless such release is compelled by a hearing officer or a court of competent jurisdiction pursuant to an appeal, or is relevant to a legal claim asserted by the employee. Arkansas law also sets out the licensing criteria for testing laboratories. Connecticut Connecticut allows for testing under the following circumstances:

6 Pre-employment applicant screening. Applicants for employment may be required to submit to testing, provided they are notified in writing at the time they apply that the employer plans to require a drug test, the test is in accordance with the statutory procedures, the results of the test are kept strictly confidential and not disclosed to anyone except the applicant, and the applicant is provided with a copy of any positive test results. Reasonable-suspicion testing. Current employees may be tested only if the employer has a reasonable suspicion that an employee is under the influence of alcohol or drugs that could adversely affect the employee s job performance. Individualized reasonable suspicion is required. Connecticut courts have found that mandatory postaccident drug testing is prohibited by the statute. Random testing of safety-sensitive employees. Employers may conduct random drug tests only if authorized by federal law, if the employee works in a high-risk or safety-sensitive occupation, or if the test is part of an employee assistance program in which the employee voluntarily participates. The State Commissioner of Labor is required to determine whether a job is considered high-risk or safety-sensitive at the request of an employer or employee. No employer may take any adverse personnel action against an employee unless the employee has tested positive on a test utilizing a reliable methodology and that positive result is then confirmed by a second test, separate and independent from the first test, that utilizes a gas chromatography and mass spectrometry methodology, or a methodology that has been determined by the state commissioner of health services to be as reliable or even more reliable. The law also provides for privacy protections, such as prohibiting observation of the employee during specimen collection and confidentiality of results. Florida An employer may require a current employee and applicant to submit to a substance abuse test as part of a drug-free workplace program that includes notice, education, and testing for drugs and alcohol pursuant to rules developed by the Division of Workers Compensation of the Department of Labor and Employment Security. Such a program is voluntary; employers are not required to implement a drug-free workplace program. Employees who implement such a program are entitled to certain benefits. If an employer implements a drug-free workplace program, it may conduct the following types of tests: Pre-employment applicant screening. Employers may refuse to hire applicants who either refuse to submit to a drug test or test positive. Reasonable-suspicion testing. Reasonable suspicion may be based upon the following criteria: direct observation of drug use or manifestations of being under the influence of a drug; abnormal conduct or significant deterioration in work performance; report of drug use, independently corroborated; evidence of tampering with a drug test; information that the employee has caused an accident at work; and evidence of drug possession or selling at work. The employer must document, in writing, the circumstances that formed the basis of the reasonable suspicion and provide the documentation to the employee at the employee s request. Routine fitness-for-duty testing. A test conducted as part of a regularly scheduled medical exam and applicable to all members of the same employment classification is allowable. Postrehabilitation testing. After an employee has been in rehabilitation or an employee assistance program, the employee may be required to submit to testing for up to two years after such a program on a quarterly, semiannual, or annual basis.

7 An employer must give employees and applicants a written policy statement containing the following: A statement of the employer s policy on employee drug use that identifies the type of testing to be done A statement describing the adverse action that may be taken against employees and applicants for a positive confirmed test result or for refusing to submit to a test A statement regarding the existence of the Drug Free Workplace Act An assurance of the confidentiality of test results A list of procedures for employees and applicants to report the use of prescription or nonprescription medications confidentially both before and after being tested The names, addresses, and telephone numbers of employee assistance programs and local rehabilitation programs An explanation of their right to contest or explain a positive, confirmed drug test result to a medical review officer within five days after receiving written notification of the result The employer s responsibility to notify the laboratory of any administrative or civil action brought pursuant to the statute A list of all drugs for which the employer will test A statement regarding any applicable collective bargaining agreement A statement notifying employees and applicants of their right to consult a testing laboratory for technical information regarding prescription and nonprescription medications If an employee or applicant s explanation or challenge to a confirmed test result is unsatisfactory, a written explanation as to why it is unsatisfactory and the test results should be sent to the employee. No employer may discharge an employee or take disciplinary action on the basis of an employee s test result that has not been verified by a confirmation test and by a medical review officer. If an employee in a safety-sensitive position enters a rehabilitation program or EAP, the employee should be placed in a non-safety-sensitive position or leave status while undergoing treatment. Upon completion of a rehabilitation program or EAP, all employees must be reinstated to the same or equivalent position they held prior to the program. Florida requires that all positive test results be confirmed. A confirmation means a second analytical procedure different from the initial test procedure; the method must be different in scientific principle from the first test in accordance with the law. The law also requires confirmation tests to be conducted by licensed or certified laboratories. Oklahoma Oklahoma law provides for testing under the following circumstances: Pre-employment applicant screening. An applicant may be required to test upon offer of conditional employment and so long as the same test is required of all applicants offered the same position. For-cause testing. An employer may test an employee at any time that the employer reasonably believes that the employee may be under the influence of drugs or alcohol. Postaccident testing. Testing may be conducted after an employee is involved in an accident that caused a work-related injury to the employee or another person, or damaged the employer s property, but only if the employer has a reasonable suspicion that the injury or damage was a direct result of the employee s use of drugs or alcohol. Testing pursuant to a fitness-for-duty physical examination.

8 Postrehabilitation testing. Testing may be conducted for up to two years following the return to work of employees who had previously tested positive or entered a rehabilitation program. In order to test, an employer must have a written drug and alcohol policy that includes The employer s policy regarding drug and alcohol use Who is covered by the policy The circumstances under which testing may be requested or required A description of what substances will be the subject of testing A description of the testing procedures An outline of the consequences of a refusal to participate or of a positive test An explanation of the confidentiality of the results and the right of the employee to explain, in confidence, reasons for a positive result An explanation of employee rights and appeal procedures At least 10 days notice must be given for implementation of a substance-testing policy, and the employer must post the policy conspicuously. The law also has several rules regarding the times and costs of testing, sample collection, testing requirements, record-keeping procedures, and access to records. An employer that tests must have a policy that includes an employee assistance program and confirmation of positive test results that will be used as the basis for adverse personnel actions. Confirmation tests must be done on the same sample as the first test and utilize gas chromatography and mass spectrometry or its equivalent. In addition, state law provides that any employee who is discharged on the basis of a refusal to undergo drug or alcohol testing or a confirmed positive test result shall be disqualified from unemployment benefits. Rhode Island Employers may require drug testing as a condition of continued employment only if they have reasonable grounds to believe that an employee is impaired on the job by the use of alcohol or drugs. The observations of an employee s job performance which suggest that the employee may be under the influence, which are required to allow drug testing, must be documented. A drug-testing program must be conducted in conjunction with a bona fide rehabilitation program and a written drug abuse prevention policy. All employees must be allowed to provide the test specimen in private and allowed an opportunity to rebut or explain positive results. Positive test results must be confirmed by means of gas chromatography and mass spectrometry or a similarly accurate method, and the employee must have the opportunity to have the sample tested by an independent testing facility at the employer s expense. Employers also may test applicants who have been given an offer of employment conditioned on receiving a negative test result. The test must be conducted in private and outside the presence of any person, and positive results must be confirmed by a certified laboratory by gas chromatography and mass spectrometry or a similarly accurate method. Washington Washington s Medical Use of Marijuana Act does not require accommodation of medical marijuana use and does not prohibit an employer from discharging employees for marijuana use even if used for medical reasons. Employers in Washington may receive a 5% discount in workers compensation insurance premiums if

9 they maintain an alcohol- and drug-free workplace program in accordance with the law. Such a program established under Washington law must contain all of the following elements: A written policy statement Substance abuse testing An employee assistance program Employee education and supervisory training Policies and procedures in place to protect confidentiality To qualify for the discounted workers compensation insurance premiums, the employer must require job applicants to submit to a drug test after a conditional offer of employment. In addition, drug testing must be made a part of the investigation of each workplace injury that results in an employee needing off-site medical attention. C. The Drug-Free Workplace Act of Form and Components of a Substance Abuse Policy b. Defined Intent The policy should state the intent and purpose of the company s views regarding substance abuse, and clearly define the conduct that is prohibited. The policy should also specifically describe the controlled substances that are covered, and should include illegal drugs, alcohol, and the unauthorized use of legal drugs. e. Detection Training Supervisors and counselors should be trained to recognize the physical, emotional, and behavioral manifestations of substance abuse to help them identify those who appear impaired. f. Rehabilitation The best substance abuse policies provide for some form of rehabilitation program for those persons who admit to substance abuse or who test positive. While it may be impractical for staffing firms to offer formal employee assistance programs similar to those offered by many large employers, a staffing firm s substance abuse policy could include the following: Referrals to the name, address, and telephone number of local private or public agencies that provide rehabilitation services Informal counseling to the employee on the need to obtain professional help Leaves of absence for employees who test positive so that the employee who does obtain rehabilitation services may return after being treated (with appropriate safeguards, including periodic random retests and the like) g. Authorization and Release from Liability Forms Applicants or employees asked to be drug-tested should execute appropriate authorization and release from liability forms. There are state law compliance considerations. A sample form is included as part of Appendix E. ii. Recording Results. All results should be stored in confidential files, separate from any employee s personnel file.

10 4. Selection of a Laboratory The laboratory should have state-of-the-art internal quality control procedures and scrupulously follow them. It would be prudent for E. Must All Applicants and Employees Be Drug-Tested? 1. Applicants Employers generally have more discretion to test applicants than existing employees, and this is true for applicants for temporary assignments as well. Subject to the provisions of state laws, it is lawful to drugtest all applicants. It is also generally lawful to test only applicants who have particular skills or abilities, or only those who are likely to be assigned to certain clients that require drug tests. It is lawful to drug-test only applicants you believe may use drugs because of their membership in a protected category (e.g., minorities, Hispanics, young people, etc.). If you test only certain applicants, the distinction must be based on valid job-related criteria, not stereotypical notions of which group of persons is more likely to use drugs. Those applicants whom you decide to drug-test should execute appropriate release from liability and authorization forms. While such forms may not be legally required, they are likely to be helpful in defending lawsuits based on the drug testing. F. Dealing with the Employee Who Tests Positive 3. Common Employee Responses C. Legalization Under State Law A person may claim he or she has a prescription for marijuana or that marijuana was used in a state where it is legal. While state laws regarding the legalization of marijuana vary from state to state, it remains illegal under federal law, and if your policy prohibits the use of illegal drugs, you will generally be able to take appropriate action. 5. Dealing With the Confirmed Positive Test Result When confronted with an employee who has tested positive, a staffing firm has a variety of options in terms of how to proceed: Counsel the employee that drug use or possession is not permitted in the workplace, and caution the employee that he or she will be tested again and that another positive test will lead to termination. Disqualify the employee from future assignments for a period (e.g., two weeks) and then retest. If the employee tests negative, he or she could be reassigned, provided the employee agrees to periodic unannounced retests. Disqualify the employee from future assignments until he or she successfully completes a rehabilitation program. Many states that have enacted drug-testing legislation require the employer to provide some type of rehabilitation assistance and may not allow automatic disqualifications for a first offense. While few staffing firms have the resources to have an in-house rehabilitation or employee assistance program, the company could refer employees who have substance abuse problems to one or more public or private

11 alcohol or drug rehabilitation programs. Once the employee successfully completes the program and tests negative for drugs, the employee could be reassigned. In such a situation, most prudent employers would condition the re-employment on the employee s consent to random drug testing thereafter. Refuse to assign the employee to any clients that require drug testing. Refuse to assign the employee (i.e., discharge him or her). Deciding which of these options, or combination of them, a staffing firm should elect depends on the circumstances of each situation. 7. Unemployment Compensation Issues G. Current Drugs of Abuse By definition, a drug is any chemical substance that produces a physical, mental, or behavioral change in an individual. Alcohol and drugs, both legal and illegal, are subject to abuse and become a problem in the workplace when they interfere with the employee s ability to perform the job. This section discusses the most commonly abused drugs.