February 5, 2019

Several recent trends are causing some employers to revise their drug use policies. Here are some issues to consider to help ensure your company’s strategy is effective and up-to-date.

Changes in the Workplace

In general, workplace drug testing is losing popularity, except for hazardous jobs in which drug impairment could lead to serious accidents and injuries. For example, federal law requires drug testing for certain employment categories in the transportation and construction sectors.

One reason for the declining popularity of drug tests is today’s tight labor market. At the end of 2018, the U.S. unemployment rate was only 3.9%. Low unemployment has caused many employers to experience difficulties finding qualified job candidates. Some employers have responded by relaxing their drug testing policies to help fill open positions and retain existing workers.

To complicate matters, marijuana use is legal in a growing number of jurisdictions. In fact, at the start of 2019, it was legal for adults over 21 to use marijuana recreationally in ten states and Washington, D.C. And it’s legal for medical purposes in 33 states. While employers generally can’t afford to have employees working while impaired by any drug (including alcohol), measuring impairment of marijuana users can be difficult.

At the same time, employers need to identify workers who abuse opioids, including prescription painkillers (such as morphine, oxycodone or hydrocodone) and illegal forms (such as heroin or illicitly made fentanyl). The personal toll of opioid addiction has inspired public sympathy towards addicts and a focus on treatment. However, employers can’t afford to look the other way when employees come to work under the influence of such powerful narcotics.

Unfortunately, among employers who continue to test workers, positive results for drug testing are rising. Increasing rates of positive results have been concentrated in consumer-facing industries, including retail, health care and social services, according to Quest Diagnostics.

Rationale behind Drug Testing

Before your business modifies an existing policy, it’s a good idea to recall why you decided to rein in drug use by employees in the first place. Common reasons for these policies include:

To reduce workplace injuries and fatalities. The National Safety Council estimates that accident rates are two to five times greater among employees who abuse drugs.

To improve productivity. Drug use can lead to higher absenteeism rates, lower concentration due to withdrawal symptoms, and preoccupation with obtaining more drugs. These factors can impair work quality and productivity levels, leading to production delays and rework due to errors.

To reduce liability risks. Employers may be held legally responsible if a drug-impaired employee injures a coworker or customer, or causes another form of harm. Employers also may be liable for repairing or replacing any damaged or destroyed business property.

To minimize ancillary costs. Workers compensation and liability insurance claims arising out of incidents involving drug-impaired employees may result in higher insurance premiums. Plus, it may increase benefits costs due to health problems associated with drug abuse.

To boost employee morale. When employees work under the influence of drugs, coworkers usually notice. They may be concerned that drug-impaired colleagues could harm them or that they’ll have to work harder to offset the related loss of productivity.

Policy Pointers

With your original intent in mind, what kind of a drug policy should you have? The answer will depend on your circumstances, including the degree to which illegal drug use and working while impaired has been a problem at your company so far.

At the most basic level, your policy must comply with all applicable federal, state, and local laws and regulations. For example, in Maine, employers aren’t allowed to discriminate against employees based on marijuana use outside of work.

Your basic policy document should include a preamble stating its purpose, including how the policy is in the best interest of all employees’ safety and well-being. The preamble can also state who the policy applies to — typically full and part-time employees and contractors.

In general, most policies prohibit the possession, use and sale of certain drugs on your premises, and coming to work under the influence of such drugs. These may be defined to include both illegal substances and legal ones, such as alcohol and certain prescription medications.

If your policy calls for drug testing, you should specify when tests will occur. Examples of situations that may trigger a drug test include when:

  • A formal job offer has been made to a new employee,
  • A current employee is promoted,
  • A workplace accident has happened and the causes and circumstances are unclear, and
  • Management decides to test employees randomly, as permitted under state or national law.

Your policy also may state that you reserve the right to search employees’ work areas when drug use is suspected.

Last, but not least, your policy should establish the range of possible consequences of drug policy violations, including termination. However, be careful about being overly prescriptive. Consider language along the lines of, “Supervisors will decide on the appropriate disciplinary action to be taken depending upon the specifics of the case.” Consistent application of your policy is critical to limiting your exposure to discrimination claims.

For More Information

The use of alcohol, marijuana and other drugs in the workplace can be a sensitive subject. But employers need to take proactive measures to protect themselves and their employees from potential harm that impaired workers might cause. In today’s ever-changing legal and regulatory landscape, it’s important to consult your attorney or HR professional before revising your existing drug policy or drafting a new one.

© 2019