Random drug testing is an important part of maintaining an effective and safe workforce. Many large companies outsource drug testing because they believe the requirements are too costly. Let’s break down the requirements for conducting legal random drug testing for your business.
Identify Requirements for Legal Random Drug Testing
Most large corporations use the Drug Free Workplace Act of 1988 as a starting point for their random drug testing program. It is required that all businesses that seek federal contracts abide by the drug free workplace act and SAMHSA provides a comprehensive toolkit for meeting all the requirements.
If you have a large business and expect to apply for federal contracts anytime soon I suggest hiring a consultant and studying the SAMHSA provided information in detail.
For a random drug testing program to consider the law as much as possible it will need to be part of a larger drug free workplace policy that covers everyone working for your business. Your drug free workplace policy will be comprehensive and will outline all drug testing that your organization plans on conducting.
Your business may be subject to additional regulations and laws depending on your industry and the states you operate in, but the Drug Free Workplace Act is a good starting point. Some industries also have more strenuous requirements like companies that are subject to DOT regulations.
Which Drug Tests are Legal?
You can use any drug test you want for random testing as long as the staff are trained and certified in conducting and interpreting them. The FDA separates in vitro tests into 3 categories
- High Complexity
- Moderate complexity
- CLIA Waived
To use high complexity or moderate complexity tests from a legal standpoint you have to meet some very strenuous requirements, so strenuous that it really isn’t feasible for a business that isn’t an actual laboratory with an executive director that is a PHD specializing in chemical tests.
Since the additional cost is minimal and it takes care of many legal issues, you will need to make sure you are using a CLIA waived multi drug test like our 12 Panel drug test cup. This also solves the problem of deciding what drugs to test employees for because all of the drugs that have a CLIA waiver in place are included.
When drug testing employees always follow best practices for employee drug testing especially when it comes to maintaining a chain of custody and verifying positive results with a confirmatory screening.
Basic Guidelines for a Legal Random Drug Testing Program
Written Drug Free Workplace Policy
The first thing you need to do is create an internal document outlining your drug free workplace policy. It is a good idea to consult an employment attorney when drawing up your procedures, penalties and policy.
Employees should sign a copy and be given their own copy of your drug free workplace policy when they submit an application. This will deter heavy drug users and will make it clear to others that you take drug use seriously. You can use the Drug Free Workplace Act as a basis for your own policy.
Clearly Identify Penalties
Every employee should know what the penalties for violating your drug free workplace policy are and what to expect if they fail a drug test. Be as detailed and specific as possible in regards to penalties and be consistent with enforcement.
A company policy is far less questionable than the judgement of a manager. This is your opportunity to be as lenient or as strict as you’d like in regards to how you handle policy violations.
Outline Drug Testing Guidelines
Explain who will be tested, when they will be tested and be a detailed as possible.
For example, you will want to clearly identify that employees can be tested for pre-employment, post accident, and random drug testing at a minimum. If you include instances such as suspected drug use you will need to have your supervisors trained and certified to identify impairment.
The more specific you are in your outline the better your will be protected in case of a dispute. For instance if you say that 50% of the workforce will be randomly selected for testing every 12 months and then follow those guidelines an employee can’t accuse the company of discrimination as easily.
The more training you have for your employees involved in a drug testing program the better. There are certifications for everything from administering drug tests to identifying impairment.
At the very least employees involved in carrying out your drug free workplace policy should have in house training and semi annual retraining for their particular roles.
In larger companies a Medical Review Officer will be employed with specialized medical training in handling samples and following structural guidelines. In smaller companies an employee in HR will usually handle screening in addition to other duties.
There are many benefits to drug testing employees, and it will be the center of your drug free workplace policy. Drug testing will help lower your insurance rates, improve workplace safety and reduce costs. Most business will employ 3 primary types of drug testing:
- Pre employment drug tests
- Post Injury drug tests
- Random drug tests
You can legally send an employee for a drug test if you suspect they are high on the job, but you need to have trained persons make that judgement call and be prepared to back it up in court. It is actually very rare for someone that fails a drug test to fight it in court after the fact, but as a business owner you want to prepare for the worst.
Employee Education for Drug abuse
It is often considered a duty of an employer to help educate their staff about drug abuse and encourage them to abstain from illegal substances.
Provide education and training that reinforces healthy behaviors and spreads awareness about the effects substance abuse can have on health and employment.
You can do this by bringing in a medical expert annually for continuing education, or by meeting with each employee individually.
The staff member that supervises your Drug Free Workplace policy is a very important cornerstone for the entire program.
Depending on the size of your business the supervisor may be the sole administrator of the Drug Free Workplace Program or they may supervise a staff of several different professionals.
Supervisors should be intimately familiar with every detail of the program and be able to thoroughly document everything in a fair, systematic and unbiased way. The supervisor is responsible for identifying possible legal issues and tracking state and federal laws that affect your policy.
Employee Assistance & Rehabilitation
No business wants to lose a good employee to drug abuse. Gainful employment is one of the biggest incentives for a drug user to stay clean, and studies have shown that employees that are in recovery may be even better than average employees; they miss fewer days and have a 21% lower turnover rate.
Part of a drug free workplace policy is offering employees a second chance when they violate the rules.
Always document violations clearly and have the employee and their supervisor sign off. If you have documentation to back up that your employee has repeatedly violated a company policy then there is very little room to misinterpret a company’s actions.
Additional Tips for Avoiding Legal Action
Protect Employee Privacy
Protecting employee privacy is one of the key requirements for legal drug random drug testing. Since drug testing is considered a medical test there is an expectation of employee privacy. Test results are confidential and only the appropriate personnel should have access to them.
You should never comment on an employee’s drug use as it pertains to your drug free workplace policy. Do not gossip with your family and do not discuss it with employees. Violating an employee’s privacy could potentially lead to significant legal hurdles so it’s better to adopt a zero tolerance policy and be safe rather than sorry.
Do Not Rush to Judgement
Enforcing a drug testing policy requires a professional and systematic approach. It is very easy to let emotions become involved when you believe an employee has endangered your business and co workers through reckless behavior, but you need to strictly stick to your policy to afford yourself the most protection.
In a worst case scenario one of your managers dislikes a subordinate and decides to drug test them. The manager gossips to others that the employee is a drug addict and it gets back to them. They end up passing the test, but now at the very least you have a difficult situation between two employees and at worse your employee has a case for slander and your company violating a policy they developed. It could also make future termination proceedings very difficult because there is now a record of your company seemingly targeting them for termination.
A drug free workplace policy has no room for playing favorites or discriminating against employees you no longer like. Rules need to be enforced across the board and if you say you’re going to do 25 random drug tests per year you need to do exactly 25.
If you go 4 years without doing a random drug test and then one day drug test 5 employees and 1 is dirty, it could seem like you targeted that employee specifically.