If you’re going to require job applicants to undergo drug screening before hiring them, just make sure that the testing procedures are fair, strictly related to the job, consistent, and most importantly, non-discriminatory. You need to be aware that any drug test that will be perceived as discriminatory in any way will expose you to discrimination claims. Also, it’s advisable to give them a conditional job offer first before requiring drug testing. That way, job applicants won’t feel like their privacy is being invaded even when there’s no assurance they’ll be hired.
Employee drug testing has been around for some time, with more and more employers recognising its benefits as far as health and safety in the workplace are concerned.
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Employee drug testing has been around for some time, with more and more employers recognising its benefits as far as health and safety in the workplace are concerned. However, employee drug testing has always been a tricky issue. There are a lot of legal factors to be taken into consideration, and that is why we have been constantly reminding employers that if they’re thinking about instituting an employee drug testing program, they should run it by their lawyers first before implementation to avoid any legal issue that may arise.
So if you’re an employer and you’re thinking about testing your workers for drug use, here are 5 legal considerations about employee drug testing.
1. Test one, test all
Many opponents of employee drug testing decry the fact that only some employees are actually singled out for drug testing, particularly in random drug testing programs. If you have to test one, you might as well test them all. Though laws don’t really clearly state that you have to test all your employees, testing just a handful of employees could expose you to the possibility of anti-discrimination lawsuits. Let’s say that you had those handful of employees tested because of suspicions of substance abuse at work on their part. Even if you’re intentions are on point, that could be construed as singling people out based on race, gender, income level, or any protected status, and you certainly wouldn’t want to deal with that kind of problem.
2. Make sure the drug test is accurate
Many employees meted disciplinary action after testing positive in a drug test often go to court questioning the accuracy and reliability of the drug test used. While drug testing technology is not infallible, the more expensive drug tests tend to be more accurate. Conversely, cheap screen tests — which many employers use to save money — are notorious for turning out false positive results, which expose whatever disciplinary actions taken to a legal challenge.
3. Non-discriminatory pre-employment drug screening
4. Always get samples with consent
Always test honestly, and that means picking up an employee’s stray hair from a desk is out of the question. Sneakily getting a specimen sample from a worker or a job applicant without any consent is more than just dishonest. It also happens to be unlawful.
5. Always consider state-specific laws.
Your organisation is subject to Workplace Health Safety or WHS laws, regardless of the number of your workers. These WHS laws, however, may vary from state to state, particularly with regards to drug screening. So if you’re planning on testing your workforce for drugs, make sure you’re familiar with the WHS laws of the state or states you’re operating in.
A drug and alcohol policy is crucial to help maintain the health and safety of your employees.
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If you’re an employer and you haven’t drafted a clear cut workplace drug and alcohol policy just yet, don’t worry. You’re not alone, as countless other companies have yet to formally write down rules for their employees to follow as far as drugs and alcohol are concerned.
However, don’t take too long to come up with a drug and alcohol policy for the workplace. Every day counts, and you don’t want to be dealing with a drug and alcohol-related issue in the workplace without a policy in place.
Read on to find out what you should include in your drug and alcohol policy.
The purpose and objectives of the drug and alcohol policy
It should be made clear what the drug and alcohol policy is for. Generally, it’s all about ensuring the health and safety of everyone in the workplace, but you might also want to state how the policy can also help the company achieve its productivity and overall business goals.
Coverage of the drug and alcohol policy
Ideally, a drug and alcohol policy should cover all workers — from rank and file employees to top-tier management. Drug and alcohol abuse, after all, doesn’t make such distinctions.
Clear statement about confidentiality
A workplace drug and alcohol policy should clearly state that it recognises a worker’s right to confidentiality. The program is confidential, that any drug test results or penalties meted on an erring employee would be held in the strictest confidence.
A total ban on drug and alcohol use in the workplace
Your drug and alcohol policy should explicitly state that using drugs or drinking alcohol while on duty will never be tolerated. Many workplace accidents are caused by a worker who is impaired, which means they used drugs or alcohol before going to work or during the workday.
A provision for employee education
You can’t just put an entire drug and alcohol policy in writing and expect everyone to follow it just by providing them copies.
On top of making sure that everyone in the workplace has a copy, it would also be best for a drug and alcohol testing program to be implemented as well.
Such a program should have a provision for employee education, including arrangements for drug and alcohol awareness training that will make everything about the drug and alcohol policy crystal clear to everyone have been made.
The education program should also include arrangements for training employees, supervisors, and others how to spot signs of drug and alcohol abuse and impaired behaviour.
How a drug testing program will be implemented
If your drug and alcohol policy includes a program for on-site drug testing, it has to be up front about how it’s going to be conducted, or under what circumstances are they going to be done. For instance, people will need to know if the program includes random drug testing, or what drug testing method is going to be used.
Provision for disciplinary actions
Should there be employees who breach the drug and alcohol policy, it should be stated clearly what disciplinary actions will be taken against them. The kind of substance used, the severity of the offense, the degree of impairment, if proven, are all factors that need to be considered when coming up with disciplinary actions.
Provision for assisting chronic substance abusers
A drug and alcohol policy, however, should not be all about punishing those who breach it. They also need help, particularly those who are chronic substance abusers. Provisions for assisting them should also be included in the policy. In most cases, employers course this kind of assistance through Employee Assistance Programs, which are intended to help employees deal with personal issues—drug and alcohol abuse included—that could jeopardise their health, well-being and job performance.
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Safework Health has developed and reviewed thousands of drug and alcohol policies for businesses in a range of industries and sectors across Australia.
Contact us today to learn more.
A lot employers these days have already realised how important it is to have a drug-free environment in the workplace.
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There is no question that employees who use alcohol and drugs can cause serious problems in the workplace. Among those problems are reduced productivity, absenteeism, tardiness, increased medical and workers’ compensation bills, and diminished overall job performance. In some cases, employees under the influence of alcohol and drug use may behave unpredictably and make the workplace more dangerous, not only to themselves, but also to everyone who work there. No one is spared from the effects of alcohol and drug use of employees. Colleagues, managers, and employers themselves are affected in one way or another.
Dealing with alcohol and drug use of employees is primarily the responsibility of the employer. To manage this problem, an employer should have a clearly written alcohol and drug abuse policy in place.
Alcohol use on the job
It should be explicitly stated in the alcohol policy that drinking alcohol on the job is strictly prohibited, and that corresponding disciplinary measures are to be meted against those caught breaching this rule. The punishment can be a simple oral reprimand or summary dismissal, depending on the circumstances and gravity of the breach. Employees who have endangered the health and safety of co-workers by drinking, particularly those who operate heavy machinery, should be penalised more severely than one who drank alcohol on the job but did not put anyone in danger.
Alcohol use during off-hours and outside the workplace
Policies regarding employees’ use of alcohol during their off-hours and outside the workplace can get tricky. After all, the drinking was done during the employees’ personal time. Besides, there are laws that protect alcoholics from getting fired from their jobs simply for having an alcohol problem. If an employer sacks an employee for being an alcoholic despite not violating its no-alcohol policies at work, that employer could be at the receiving end of a lawsuit that could prove to be costly.
What employers should keep in mind is that while employees’ drinking during their personal time is none of their business, it is totally their concern when those employees’ performance at work is already affected by all that drinking. They will have a legitimate reason to take action because of the inability of these employees to perform according to the standards they have set for everyone in the workplace. When there is undeniable proof that the work performance and productivity of an employee with an alcohol problem have taken a dive, the employer can impose disciplinary measures ranging from suspension to outright dismissal.
Use of legal drugs or medications
People have varying medical conditions, and are usually prescribed legal drugs for relief. It is not uncommon for employees to regularly take painkillers, sleeping aids, or any kind of legal medication. Technically speaking, whatever an employee takes as prescribed by a doctor is none of the employer’s business. However, it becomes the employer’s business if those drugs or medications impair the employee’s ability to perform his or her job. Some medications, for example, cause drowsiness. If the employees taking them drive vehicles or operate heavy machinery, they could be putting themselves and their co-workers in danger. There are also prescription drugs that impair one’s judgment, and this could also lead to all kinds of disastrous results.
Since there are laws that protect employees’ rights to take medications as needed, an employer will have little choice but to accommodate the use of those drugs. One option, however, is to transfer the employee to a post where impairment will not endanger anyone in the workplace. To protect themselves from possible discrimination complaints, employers must make sure there is clearly documented evidence of impairment on the part of the employee.
Use and possession of illicit drugs
As far as use and possession of cocaine, heroin, marijuana, ice, and other illegal drugs in the workplace is concerned, the employer has the option to impose a policy of zero tolerance. That means anyone violating the rule can be immediately suspended and later terminated, especially if there is evidence that the employee has created a safety threat in the workplace because of illegal drug use. However, there are many employers who follow a more considerate route, like helping the drug-abusing worker get professional help through Employee Assistance Programs or EAPs.
Drug testing in the workplace
Many employers have already put in place on-site drug testing programs for their workforce, but this can get a bit tricky legally. Companies do drug tests with the prevention of accidents and safety issues in mind, but with numerous privacy laws that vary from state to state regarding drug testing in the workplace, it’s wise to get legal advice regarding this matter. A lawsuit, no matter which way it goes, will always be a costly and bothersome affair. That’s why employers have to get sensible legal advice before proceeding with any workplace drug testing program.