Rethinking Zero Tolerance on Drugs in the Workplace

Desperate to fill open positions, some employers are beginning to soften zero-tolerance drug policies, particularly for jobs where safety is not an essential function.

Low unemployment and increasing use of illegal drugs are narrowing the pool of qualified workers in many regions and industries. State laws allowing medical and recreational use of marijuana are complicating recruiters' efforts to find drug-free employees, as is the continued abuse of prescription opioids.

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There are no indications that employers are relaxing standards for jobs that are safety-critical. Some such positions, including airline pilots and truck drivers, are regulated by the federal government and have strict prohibitions against drug use. However, HR and drug testing industry leaders say some employers are taking a new look at—and in some cases relaxing—their drug policies for positions that entail relatively low risk of injury or error, such as clerical and knowledge economy jobs.

"Anecdotally, there are some employers who have relaxed their standards. It's unclear how widespread it is," said Rick Farrant, a spokesman for Northeast Indiana Works, a nonprofit workforce development organization based in Fort Wayne, Ind., that assists mostly health care and manufacturing employers.

"There's more flexibility out there. There's not a bright-line policy like there used to be," said Robert Capwell, chief knowledge officer of Baltimore-based pre-employment screening firm Employment Background Investigations Inc. "It's based on individualized assessment."

Drug abuse remains rampant in the U.S. Marijuana and opioids are not the only problems. Cocaine and methamphetamine abuse continues to rise nationally, according to the Quest Diagnostics 2017 Drug Testing Index.

The percentage of job applicants who test positive for illegal drugs in the U.S. is also increasing, according to Quest, a major testing company based in Madison, N.J. It was 3.7 percent in 2012, 3.8 percent in 2013, 4.0 percent in 2014, 4.2 percent in 2015 and 4.4 percent in 2016. When all reasons for testing are combined, almost 5 percent of the general workforce tested positive for one or more drugs in 2016, compared with 2 percent for those in federally regulated safety-sensitive positions.

Conversations Needed

Before relaxing zero-tolerance drug policies, make sure everyone in the company leadership supports the move and how to deal with the consequences.

"Make sure these decisions are pushed up the chain. Consider your risk tolerance for the workforce, and consider your risk tolerance for litigation," said Matthew F. Nieman, a principal in the Washington, D.C., region office of law firm Jackson Lewis. "Zero tolerance still has a place. But you don't want that policy just because you've always had it."

"When you have a zero-tolerance policy, you are putting a flag in the ground and taking a really strong stand," said Adam R. Calli, SHRM-SCP, founder and principal consultant of Washington, D.C.-based Arc Human Capital. "If that's what you want to do, that's OK. It can be a good thing. It sends a cultural message."

But Calli cautioned: "You are taking away your flexibility. You might want to think it through."

For example, an employer might not consider a positive drug test for marijuana use an automatic disqualifier if the applicant has a state-issued card permitting medical marijuana use and if the job does not demand excellent reactions and dexterity, such as operating a crane on a high-rise building.

"There's clearly much more of a fitness-for-duty component now," said Barry Sample, senior director, science and technology for Quest Diagnostics, regarding employers' approach to drug use by job applicants. "With a more clerical type of position, you'll be less concerned about prescription opioids."

"There's nothing wrong with tailoring your drug testing to the job," Calli said.

Sample said he has seen no significant changes in which drugs employers test for in states where marijuana use has been sanctioned. Nationwide, he said, almost all employers use a basic drug test that screens for amphetamines, cocaine, marijuana, PCP and some opioids. About half of tests include one or more additional drugs.

Opioids pose a unique dilemma for employers. An applicant or employee might test positive for one such drug, but if he or she presents a valid prescription—typically to a medical review officer that works for a third-party vendor—the test result will be considered irrelevant and the recruiter or manager likely will never know of it.

Making It Clear

Experts said applicants who use illicit drugs yet take pre-employment drug tests anyway might be hoping that employers are relaxing standards or that they will get lucky and fool the testers. Calli said that some employers are revising their job application forms to state clearly on the signature page that any job offer is contingent on drug test results, so as to minimize the frustration of finding a promising candidate but having to disqualify the person.

Some employers are also reconsidering their responses to a positive drug test by someone already on the payroll. "Some smaller employers desperate for local employees are treating cannabis much like alcohol in the sense that, as long as it's not being used on the job, it's not necessarily a cause for termination," said Laura Handrick, HR analyst at New York City-based Fit Small Business, which operates a website that serves small businesses.

However, none of the changes in employer policies and practices excuses an employee who is impaired while working. Showing up for work intoxicated or falling asleep on the job cannot be ignored. After an incident—particularly one involving property damage—the employer can send the worker for a drug test if its policies authorize such action.

Farrant noted that employers face high benefits costs for impaired employees and liability for accidents and workers' compensation claims. "There's too much riding on it" for employers not to deal with such employees.

Capwell said employers should improve supervisors' training so that they are able to identify possible signs of impairment among workers. In addition, he urged companies to review their policy on drugs at least once a year.

Maintaining productivity and protecting fellow employees are important reasons for testing applicants. "Most employees like working in a place that has drug testing," Handrick said.

No one is predicting a sudden solution to the problem of drug abuse—or how employers should react.

"It's going to get messier before it gets better," Capwell said.

Steve Bates is a freelance writer in the Washington, D.C., area.

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