Workplace Drug Testing: Weighing the Pros and Cons

"You have to consider the needs of the business, in addition to any applicable state laws," said Anne-Marie Welch, an attorney with Clark Hill in Birmingham, Mich. Some employers are federal contractors or hire drivers and have to follow specific drug-free workplace laws. Other employers are struggling to find qualified employees or want to maintain a certain culture and think that drug testing—particularly for marijuana—will hinder their ability to attract and retain talent.

Risks and Rewards

When considering any employment screening program, a company should be looking at the four dominant factors that a screening program effects, said Dr. Todd Simo, chief medical officer at employment background screening firm HireRight. He said employers should consider:

• Cost.
• Risk mitigation.
• Speed.
• Candidate experience.

"Companies that value risk mitigation should really consider a drug-free-workplace program," Simo suggested. Drug testing is effective in preventing accidents, health issues and costs, absenteeism, and litigation, he said, noting that screening can also protect employees from injury and improve productivity.

However, drug testing can also be expensive, slow down the hiring process and negatively affect the candidate experience.

"Let's face it, no one likes to have a drug screen collected," Simo said. "Beyond the illicit user that avoids companies that drug test, the clean and sober person hardly cherishes the opportunity to prove that he or she is not a drug user."

Consider When to Test

Generally, employers choose one or more of the following times to drug test:

• Pre-employment.
• Randomly.
  
• Post-accident.
  
• When observable behaviors trigger reasonable suspicion.
  
  

Pre-employment
Screening is typically done after a conditional job offer is made but before a new hire starts working.

Post-accident
Testing is required after an incident—such as an accident that caused fatalities or injuries—to determine whether drug use could have contributed.

Random
Employees are selected at random from all the participants in a drug-free-workplace program for unannounced testing.

Reasonable suspicion
Workers are tested when they show signs of intoxication, such as slurred speech and uncoordinated movements.

Pre-employment drug testing is the most common type, according to Quest Diagnostics, which provides drug-screening services. Most states allow pre-employment drug screens, though some require employers to provide notice to applicants.

Courts have generally ruled that pre-employment drug screens for illegal drugs do not constitute medical examinations under the Americans with Disabilities Act. Though, the Equal Employment Opportunity Commission has said that such screens should be administered after a conditional offer of employment has been made because the employer may need to ask job applicants follow-up medical questions based on the results.

Further, it may be easier to cut ties with a candidate who fails a drug screen than an employee who is already trained and integrated into the company. "Testing an applicant is different than testing an employee," said Kathryn Russo, an attorney with Jackson Lewis in Melville, N.Y. "They don't work for you yet."

Businesses with employees who work in safety-sensitive jobs may want to conduct on-going screens after workers are hired. Some employers like to perform random screening for workers who drive, operate heavy equipment or work on dangerous construction sites. "If you're in a random testing pool, you never know when you'll get picked," Russo noted. "It's pretty effective as a deterrent."

"Certainly, companies that are more risk-adverse should consider some form of random testing," Simo said. But employers should note that laws on random drug testing vary from place to place. Some locations restrict their use and others prohibit them altogether.

'Multistate employers must be really conversant with the laws in the locations where they operate because they vary so much.' 
Kathryn Russo

In Connecticut, an employer may conduct random drug testing only if:

• The testing is authorized under federal law.
• The employee serves in an occupation that has been designated by the state labor commissioner as a high-risk or safety-sensitive position.
• The test is conducted as part of an employee assistance program that is sponsored or authorized by the employer and in which the employee voluntarily participates.
  

Employers must write to the Connecticut labor commissioner to explain why they want to perform random drug tests and get approval for the program.

In California, the state constitution gives people the right to privacy, so "suspicionless" drug screens—such as random tests—are only allowed in narrow circumstances. However, pre-employment tests are generally permissible in the Golden State.

Employers should also be aware of local laws. For instance, in San Francisco, random testing is illegal unless it is required by federal law.

"Multistate employers must be really conversant with the laws in the locations where they operate because they vary so much," Russo said.

Employers also may want to conduct drug screens after accidents to determine if on-the-job intoxication may have contributed. Quest Diagnostics recommends that post-accident testing be done within 12 hours of the incident. "Different drugs may have different windows of detection," according to the company's website. "Generally, employees should not return to work until after test results have been received."

The federal government has clarified that most workplace drug-testing programs are permissible under the Occupational Safety and Health Act, but employers should be careful not to implement post-accident drug-testing policies that are written in such a way as to deter workers from reporting accidents. For example, rather than saying "any worker involved in any accident will be screened for drug use," employers may want to only screen workers who could have actually contributed to the incident.

What if an employee appears to be under the influence? Simo recommended that all employers develop a program to test employees for reasonable suspicion when they exhibit behaviors that may indicate intoxication. "This testing can be done on an ad hoc basis at any occupational health clinic," he said.

The observed behaviors and reasons for sending the employee for drug screening should be thoroughly documented.

Think About the Job's Safety Risks

"I find, in general, that employers that want to do drug testing usually have some employees who are performing dangerous or safety-sensitive jobs," Russo said, noting that if employees in some jobs came to work impaired, they could seriously harm themselves or others.

Employers should analyze the safety risks involved in the job, she said.

"That's not to say that employees in general office jobs don't pose a risk," she added, "but employers have a more compelling reason to drug test for safety-sensitive roles." 

Note that companies can have different drug-testing rules for different positions. "A drug test is really no different than a background investigation," according to Simo. "Depending on the position, the type of investigation that is conducted can be different."

Drug-free-workplace programs are all about deterrence and risk mitigation, he said.

If employers choose not to drug test, they can still monitor for performance issues that may stem from drug or alcohol abuse. "If someone comes to work clearly drunk or high, you may not even need a drug or alcohol test," Russo said. "It comes down to a performance issue, so make sure you're documenting and disciplining inappropriate behavior."