BEST PRACTICES BY KATHRYN J. RUSSO, JACKSON LEWIS P.C.
Top Ten Mistakes Employers Make When Conducting Workplace Drug and Alcohol Testing
A
ſter many years advising employers about drug and alcohol testing, I have observed certain mistakes
that are frequently made in the course of addressing these issues. Many of these errors could have been avoided through the preparation of a thorough drug and alcohol testing policy that complies with applicable laws, as well as some training. Here, in no particular order, are the most common mistakes employers make when administering their drug and alcohol testing programs: 1. Applying DOT requirements to non-DOT-regulated employees— Te U.S. Department of Transporta- tion’s (DOT) drug and alcohol testing regulations apply to a very specific group of employees and no one else. Employers sometimes believe that they can take a DOT drug and alcohol testing policy and apply it to everyone in the organization. Tis is a serious mistake because drug and alcohol test- ing of non-DOT-regulated employees is instead governed by applicable state and local laws. Tose laws may prohibit certain types of testing that are required by DOT. Some state and local drug testing laws provide aggrieved employ- ees with a private right of action to sue their employers, along with significant financial remedies.
2. Not realizing that state and local drug testing laws vary widely—Some states and cities have very specific drug and alcohol testing laws. It is critical for employers to become familiar with the state and local testing laws applicable to their workforce. Some jurisdictions regulate the types of testing that may be conducted, the specimens and drugs
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that may be tested, the requirements for notifying employees of positive test results, as well as the disciplinary consequences that may be imposed for testing positive (five states do not per- mit employers to fire an employee who tests positive for the first time).
3. Not having a writen policy—Many states do not have drug testing laws, and employers in those states oſten believe it is not necessary to have a writen drug testing policy (for non- DOT-regulated employees). But a writen testing policy is a best practice in all states. In the policy, the employer should put applicants and employees on notice as to the types of testing that will be required, the types of conduct that are prohibited, the disciplinary consequences for refusing to test and testing positive, among other things. Doing so helps enormously in the event that there is litigation involving a drug or alcohol test result.
4. Having a written policy that is vague—Some employers like their drug and alcohol testing policies to be as brief as possible, and may even say something like “the Company reserves the right to conduct drug and alcohol testing in its sole discre- tion.” Such a vague policy leaves many questions unanswered, such as what types of tests will be conducted? What specimens will be tested? What happens if a test result is negative dilute? What happens if the employee refuses to test or tests positive? As discussed above, the beter practice is to have a clearly writen testing policy that complies with all applicable state and local laws, and that answers all questions that employees might have about the testing process and procedures. Ten, get all employees to sign a policy receipt showing that they received a copy of the policy and understand its consequences.
fall 2017
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