A. General Overview

1. Illegal drug and alcohol use in the workplace is a major problem these days for employers.

2. At least 20 million workers use marijuana/hashish, 6 million are cocaine users and 100 million are alcohol users.

3. Studies suggest that the typical recreational drug user in the workplace is three times as late as fellow employees, has 2.5 times as many absences of eight or more days, is five times more likely to file a worker's compensation claim and is involved in accidents 3.6 times more frequently than other workers.

4. More companies are resorting to drug testing to identify drug users and reduce on-the-job accidents, especially those in high technology and security-conscious industries.

B. Preliminary Considerations Concerning Applicant Drug and Alcohol Testing Programs

1. Most state and local governments have passed laws permitting applicant drug and alcohol tests.

2. Such tests generally are not viewed as violating an individual's privacy rights if applicants are told in advance they must take and pass the test to get the job and all applicants must submit to such tests after a job offer as a condition of employment.

3. Check the law in your state and local municipal laws regarding the legality of such tests because some states (i.e., New York) still prohibit pre-employment drug testing in certain situations.

4. Drug and alcohol tests of job applicants are neither encouraged nor prohibited by the Americans With Disabilities Act (ADA).

5. Former drug users or alcoholics who have been rehabilitated or who are participating in a supervised rehabilitation program are protected under the ADA and generally must be considered for the job.

6. An applicant who is currently engaging in illegal drug use is not protected under federal ADA law.

7. An employer may prohibit the use of illegal drugs and alcohol at the workplace and require that employees not be under the influence of illegal drugs or alcohol while at work.

C. Strategies To Protect Employer When Testing Applicants

1. Know the law.

2. Adopt a plan and record it in work rules, policy manuals, employment contracts and/or collective bargaining agreements.

3. Prepare employment applications to incorporate this right.

4. Get permission that the applicant authorizes drug and alcohol tests and agrees that a positive result will mean forfeiture of a job offer; make the applicant sign such a statement in the employment application.

5. To avoid discrimination lawsuits, be sure all applicants are tested, not just a particular class of applicant and that each applicant is tested the same way.

6. Handle the results of drug/alcohol tests as you would any other confidential information.

7. Unwarranted disclosure of this information may result in breach of privacy and defamation lawsuits.

8. Hire a reputable testing company, get references, be sure the company is bonded and licensed and will provide proof of current insurance and indemnification coverage.

9. If an applicant tests positive for drugs, be careful not to automatically disqualify that applicant should the person re-apply after a certain period of time (i.e., one year later).

10. Avoid inflexible drug policies with a fixed waiting period for future employment.

D. Strategies To Protect Employers When Testing Employees

1. Know the law.

2. Generally, employers are less able to test employees than applicants.

3. Obtain legal advice before implementing any testing policy.

4. Companies whose employees are represented by unions cannot unilaterally implement a testing program.

5. Review the requirements and conditions imposed by The Drug Free Workplace Act if your company has federal contracts.

6. Treat alcoholics differently than drug users since they may be considered possessing a disability under the ADA and cannot be fired if a "reasonable accommodation" can assist the employee perform the job.

7. Outline steps in work rules, policy manuals, employment agreements and other materials which discuss steps management will take if the company suspects an employee is impaired on-the-job.

8. Inform employees that immediate testing will be conducted if drug use is suspected.

9. Describe how the test will be administered and the consequences flowing from a positive result.

10. Apply stated rules consistently.

11. Determine the scope of the testing program's coverage, how employees will be tested, under what conditions and the selection of testing facilities.

12. Inform employees that testing for substance abuse is required under OSHA guidelines.

13. Avoid conducting random drug testing unless you receive clearance from counsel.

14. Treat the test results carefully.

15. Establish a separate employee file for testing information and results to minimize disclosure and safeguard employee privacy.

16. Choose correct specimen collection procedures which balance privacy with authenticity.

17. If possible, avoid direct observations of employee urination to reduce emotional distress lawsuits.

18. Take the temperature of the specimen immediately after it is provided since this makes substitution difficult.

19. Outline specimen identification procedures and establish a specific chain of custody to insure accuracy.

20. Understand the scientific ways a test could produce a mistake to minimize the risk of such a possibility.

E. Special Concerns With Alcohol Use

1. Be especially careful before making any adverse decisions affecting an alcoholic worker and analyze each case on its particular facts.

2. Offer counseling before discharge.

3. If the employee refuses counseling, offer a first choice between treatment and discipline; do not take any adverse action during the period of the rehabilitation program.

4. In case of relapse, do not automatically terminate, but some discipline short of discharge can be imposed.

5. Before termination, determine if retention of the worker would create an undue hardship on your company.

6. If removal is the only solution, consider leave without pay before termination.

7. Treat alcoholism in a professional but sympathetic way since it may be considered a disability and protected under ADA.

8. Always proceed with caution in this area to avoid substantial statutory potential damages.