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April 25, 2014

Drug Testing in the Workplace: Just Say No?

Much Shelist

With the possible exception of an employer like High Times magazine, companies have an expectation of a drug-free workforce. The concern about employees partaking in drug use, whether at work or offsite, is legitimate. Abuse of drugs and alcohol has a major impact on performance and productivity, in addition to creating safety issues. Few will argue that employees with substance abuse problems do not negatively affect the bottom line, with decreased quality of work, increased absenteeism, tardiness and soaring medical costs from work accidents and drug-related illnesses. The list goes on.

While there is no great debate regarding the need for a drug-free workplace, the tricky part for employers is implementing and enforcing an effective and legally compliant drug policy. For the past 25 years, the most common strategy has been the use of mandatory drug tests. In 1986, during the early days of the U.S. government's "War on Drugs" campaign, President Ronald Reagan signed Executive Order 12564 in an attempt to establish a drug-free federal workplace. Pursuant to this order, it became a condition of employment for all federal employees to refrain from using illegal drugs, both on and off duty. The private sector took note and followed suit.

As it turns out, however, drug testing can cause quite a headache for employers and may be easily foiled by the employees being screened. If your company has a drug-testing policy already in place or is thinking of implementing one, consider the following:

  • Are the tests (whether currently in use or under consideration) accurate and reliable? While there are several inexpensive drug tests on the market, cheap screening kits can yield false positive or error rates of up to 20% in detecting the presence of illegal drugs.

     

  • Can your employees thwart the test? Urine testing is by far the most commonly used method in the private sector, but a quick Internet search will turn up a slew of tactics for thwarting these tests. The most common strategy for passing a urine test is to increase fluid intake and urine flow in order to dilute the concentration of drugs in the sample (although this method may only be effective against tests for marijuana use). A more extreme approach involves actual products marketed for this purpose, such as the Whizzinator, a kit that includes dried urine, a syringe and other items. The owners of the company that sold the Whizzinator were charged in federal court with conspiracy to defraud the government and eventually pleaded guilty. However, similar products come on the market regularly and are available for purchase on the Internet.

     

  • Does the scope of the test overstep the bounds allowed under the law? The U.S. Equal Employment Opportunity Commission (EEOC) has filed a claim in Michigan federal court against a company for allegedly violating the Americans with Disabilities Act (ADA) by testing its employees for certain legally prescribed drugs and requiring those who tested positive to stop taking the medications as a condition of employment. The EEOC brought this claim based on concerns that employees will be forced to disclose confidential medical issues. However, the Michigan case does not address the prohibition of misuse of prescription or over-the-counter drugs, a common element of many drug policies. The court has not yet decided the Michigan matter, but the case provides a reminder that employers should regularly review drug-testing policies and procedures to ensure compliance with applicable federal and state laws.
     

As an alternative to or in addition to drug testing, employers can take the following steps to foster a drug-free workplace:

  • Offer employee education about substance abuse and access to confidential counseling through an employee assistance program (EAP).

     

  • Make literature and electronic information about substance abuse available to employees via handouts, bulletin board flyers and e-mail communications.

     

  • Take advantage of the Department of Labor's Drug-Free Workplace Advisor, a free online tool designed to help employers establish additional policies.

If you have questions or would like assistance creating and implementing a legally compliant drug policy in your workplace, please contact your attorney.

© 2014 Much Shelist, P.C.

About the Author

Much Shelist is a full-service business law firm based in Chicago. Since our founding in 1970, and as we have grown to approximately 85 attorneys, we have nurtured a collaborative culture that emphasizes sophisticated, senior-level attention to client matters, combined with a collegial, creative atmosphere that allows us to deliver the highest level of service to every client. In addition, we are firmly committed to remaining independent, thus creating an environment of stability for our clients and our attorneys.

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