The Rules & Your Rights As An Employer
Most private employers are not required to conduct applicant drug testing, but many do – and for good reason. If you are currently conducting pre-employment drug testing – or your company is considering a drug testing program – you need to know the rules. Even if drug testing is allowed (as it is in many states), you can still get into trouble if you violate employee rights by testing for illegal reasons or using the wrong methods.
Drug testing applicants and/or employees is typically up to individual employers. The only employers who are required to test applicants and employees are those in transportation and other safety-sensitive industries that are regulated by federal agencies like the Department of Transportation (DOT). If your company is in the trucking industry, for example, or contracts with the Department of Defense, you may be required to test for drugs and alcohol.
Companies drug test for various reasons – the most common reasons are to:
A company may be held liable for injuries or damage caused by an impaired employee at work. A solid Substance Free Workplace Policy reduces the chances of substance use on the job. Workers’ compensation claims may be denied if the injured employee is found to be impaired at the time of the incident.
Employees who use drugs are three times more likely to be late to work, more than three-and-a-half times more likely to be involved in a workplace accident, and five times more likely to file a workers’ compensation claim.
Discounted Insurance Premiums
Employers in South Carolina are eligible for a 5% discount on their workers’ compensation insurance premiums and realize a reduction in unemployment insurance premiums as a result of fewer paid claims with an approved Substance Free Workplace Policy.
Whether it is company time, materials or supplies or theft from clients that the employee serves, shrinkage and theft is reduced when you don’t have addicts looking to get a quick buck for their next fix.
Already Drug Testing Applicants & Employees?
If your company is already drug testing, it is important to review your current drug policy to make sure that it not only informs employees of their expectations, but also protects the company from potential legal liability in all cases involving drug testing. Some examples of what should be covered in your policy include:
- Company Policy Statement
- Who Is Covered By The Policy
- Prohibited Activities
- Disciplinary Actions
- Types of Testing Done
- Situations When Testing Will Be Done
- random testing
- reasonable suspicion
- return to work & follow-up testing
A drug testing program can easily lead to discrimination allegations if an employer isn’t testing according to an established policy. Recently, a company had an employee tested for drugs because the supervisor heard that the employee had been at a party over the weekend and was seen smoking a joint. The employee failed the test and was terminated. He then sued the company for racial discrimination alleging that because he was Hispanic, the company targeted him in order to fire him. The company did not have the employee tested for drug in accordance with the company’s established policies and procedures and is now facing huge legal bills as a result of this claim
Disability discrimination claims might also arise from a drug testing program. The Americans with Disabilities Act prohibits employers from discriminating against employees who take medications to treat or manage a disability. A drug test might reveal the use of drugs prescribed to treat a disability. If you reject an applicant or terminate an employee based on a positive test result, and the applicant was using legally prescribed drugs for a disability, you could be liable for disability discrimination. For this reason, lab testing and review of results by a Medical Review Officer (MRO) is strongly encouraged and required in some instances. A MRO will review positive test results with the applicant or employee. If they are using prescription drugs, they have an opportunity to explain and provide evidence of the medical need for the prescription.
FREE POLICY REVIEW:
Have your current drug free workplace policy reviewed by an industry expert trained to identify areas that can expose your company to liability.
Sit down with our professional consultant to learn more about updating your existing Substance Free Workplace Program or setting up a new program that is tailored meets the needs of your business.
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