Drug and Alcohol Testing in the Workplace

Industry statistics reported by the National Drug Free Workplace Alliance show that between 2008 and 2012, an annual average of 8.7% of full-time workers aged 18 to 64 used alcohol heavily in the past month, 8.6% used illicit drugs in the past month, and 9.5% were dependent on or abused alcohol or illicit drugs in the past year.

Further, according to the Substance Abuse and Mental Health Services Administration (SAMHSA), it is estimated that American companies lose billions of dollars every year as a result of employee substance abuse. Consequently, in order to provide a safe, drug and alcohol free workplace, employee substance testing may be a good idea.

Types of Testing

Employers are permitted to conduct several types of tests under a wide variety of circumstances. What type of testing is chosen should be based the needs of the organization and the goals of the substance testing.

There are several types of substance testing to choose from.

  • Pre-Employment Testing – This type of testing is used to screen all applicants for particular positions or all positions. Organizations may want to test all new hires, particularly if they have a drug free workplace, or they may only want to test those employees in hazardous or high risk positions. It is important to note that any time a category of individuals is singled out for any reason, allegations of discrimination may arise.
  • Random Testing – These tests are conducted on an irregular, unannounced schedule. This type of testing is essential if employers are serious about addressing substance abuse in the workplace. This method is the only non-discriminatory, non-selective substance testing, and is the only way to detect casual substance abusers in the organization.
  • Scheduled Annual or Semiannual Testing – When used as part of an ongoing or completed rehabilitation program, this type of testing is effective, but it is a severely limited testing method if it is the only type of test conducted in organizations serious about controlling substance abuse. The only individuals who are likely to test positive in an annual test are those who are too addicted to abstain for more than a short period prior to the testing.
  • For Cause/Reasonable Suspicion Testing – Organizations can routinely substance test after any industrial accident, in addition to testing employees who behave erratically, smell of alcohol, or are the subject of complaints from the public or other employees.

Create a Clear Policy

Of course, before any substance tests are administered, it is critical to have a written policy. The policy should include a clear statement of the reasons for the testing. The purpose may be to fulfill a legal requirement or simply to maintain a safe and secure workplace.

The policy should also specify the type of substance testing to be conducted. If an employer wishes to introduce a substance testing program, there should be a notice period prior to initiating tests in order to give employees with substance abuse problems time to seek treatment, respect the rights of employees, and avoid damaging morale.

An effective substance abuse testing program will require management support, an effective written policy, and fair administration. Before any organization decides to begin a substance abuse testing program, there needs to be a consensus that the process is appropriate for the organization, otherwise the program will not likely be effective.

Legal Challenges

Before an organization begins a substance testing program, it needs to be aware that there may be legal challenges to the need and legitimacy of the program, as well as the accuracy of the testing.

Employers that choose to test prospective employees for recent drug or alcohol use during the application review process should note that some states have enacted legislation limiting, or in some cases prohibiting this practice. However, such tests may be permitted where the company can show that the testing is necessary, for example, when an applicant is being considered for a position operating heavy machinery.

As far as the accuracy of the testing goes, it is necessary for employers to ensure proper chain of custody procedures for specimen collection and handling. It is best to use a National Institute on Drug Abuse (NIDA) certified lab and maintain the availability of a Medical Review Officer (MRO) to review the results.

The most common legal claims made against employers by applicants and employees subject to the substance testing are violations of public policy statutes, violations of civil rights by the use of unreasonable search and seizure, and invasion of privacy.

While the potential legal concerns about workplace substance testing may seem daunting, the positive aspects of workplace substance abuse testing outweigh the negative. There are legal risks involved, but those risks primarily stem from substance testing performed in an unethical, discriminatory manner.

A properly managed, fair and impartial substance testing program can save an organization money by increasing workplace safety, reducing accidents, and improving productivity. Employers may also experience a reduction in expenses related to substance abuse in the workplace such as absenteeism, theft of company or employee property, and direct and indirect medical and workers compensation costs.

Employers interested in obtaining an Employee Consent to Drug/Alcohol Test Policy and Form can click this affiliate link.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.

Written by 

New Jersey lawyer turned blogger, podcaster and legal changemaker.