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Court Rulings Reiterate that Employers Should Review and Revise Best Practices for Drug-Free Workplace Programs

Published by on September 16, 2015

Employers have many reasons for requiring employees to submit to drug and/or alcohol testing, both as a part of pre-employment screenings, and as a condition for continued employment in the workplace. In addition to serving as a deterrent to illegal or dangerous behavior, companies in some industries (such as those regulated by the U.S. Department […]

Employers have many reasons for requiring employees to submit to drug and/or alcohol testing, both as a part of pre-employment screenings, and as a condition for continued employment in the workplace.

In addition to serving as a deterrent to illegal or dangerous behavior, companies in some industries (such as those regulated by the U.S. Department of Transportation) are required to implement and maintain comprehensive drug-free workplace programs in order to ensure safety in areas such as motor carrier (trucking company) operations, intercity passenger rail and commercial bus services.

Other industries in which drug-free workplace programs are considered a critical component in workplace protection include construction, foodservice, healthcare and public safety, among others. The courts have also demonstrated that how a drug-free workplace program is implemented is every bit as important as why it is being implemented.

A recent Texas case, Rincones v. WHM Custom Services, Inc., highlighted the problems that arise when a drug-free workplace program is poorly implemented or inconsistently applied.

In summary, the employee in Rincones alleged that his employer treated his positive drug test differently that it treated other employees’ positive drug tests under similar circumstances, and the court agreed. As a result, the employer was found at fault for discharging Rincones despite the fact that the discharge was due to a positive drug test result, and even though the test itself was administered by a third-party testing service specifically to ensure impartiality.

Considering the risks that employers take though lax enforcement or poor implementation of a drug-free workplace policy, the following are four key rules that employers should take into account when developing and supervising comprehensive drug-free workplace programs:

Rule #1: Treat everyone the same.

If any point was made clear as a result of the Rincones decision, it was: treat every employee the same under the same circumstances. Period! This means that you should not offer some employees remedial programs and fail to mention the same programs to other employees.

This also means that if you offer second (or third) chances to even one employee one time, you should offer them to everyone, every time. If you report one employee to a licensing board for failing a test, you should report other employees, too. If you require one employee to submit to a drug test following an accident, you should require all employees involved in similar accidents to submit to a test. And of course, always document these standards and procedures in a comprehensive employee policy and procedure handbook.

Rule #2: Follow your procedure. Every time.

The prerequisite to “follow your procedure” is “develop a procedure.” Develop a Drug-Free Workplace Policy, then establish procedures for determining when and how you will test employees, including how you will determine which employees you will test, and how you will respond to violations of the drug policy.

Be specific. Make sure to review the policy with legal counsel knowledgeable in the laws of your state as well as any applicable federal statutes. Then, publish the policy in your employee handbook. And when applicable circumstances arise, follow your procedure exactly as directed in the policy, each time.

Rule #3: Train your employees to know the procedure.

Ensure that your employees are properly trained on the procedure that is outlined in your handbook. The policy is no good if the person who first recognizes the need for a drug test doesn’t take the right steps to document the circumstances that lead to the test.

Likewise, the procedure fails if the person administering the test doesn’t administer it correctly, or administers a different test than what your policy calls for, or inaccurately fills out the applicable forms, or allows an employee to become unsupervised on the way to the test, or fails to protect the chain of custody for the test, or any number of other scenarios that result in a process breakdown.

Furthermore, you should include “reasonable suspicion” training and other drug-free workplace training programs as a part of your on-boarding and training process (catered to the trainee’s position and responsibilities, of course). In this way, your employees are informed of the drug policy and know where to look for instructions when the need arises.

Rule #4: Do not rely solely on third-party providers to ensure your compliance.

This may sound counter-intuitive. After all, that’s why you use a third-party provider, right? And yes, there are enormous advantages to working with dedicated third-part providers to maintain and manage your drug-free workplace program. The operative word here is “solely”. Courts do not assume that just because a problem arises with a third-party provider, that this absolves your company of responsibility for addressing or resolving the issue.

You can outsource a process – but you can’t outsource ultimate responsibility for your own company’s compliance with the law. On a higher level, it’s in your interest to retain good employees, so you should support them, and ensure that they are treated fairly and consistently by the process that you and the third-party provider jointly administer.

Additionally, not being involved in the process may open you up to the same scrutiny Rincones’ employer faced in the Texas case, wherein the employer’s claimed ignorance of actions taken by the third-party provider failed to absolve them of any responsibility.

Laconic Lookout:

If a clearly defined and thoroughly documented process is the key to a successful drug-free workplace program, then the indoctrination of that process across all stakeholders — management, field supervisors, front-line employees and third-party providers – is essential for the process to hold when it is actually put to the test.

Keep in mind that many states have laws that address drug testing – including notice requirements and limitations on the circumstances under which an employer may conduct a drug test. Federal laws may apply too, as mentioned earlier.

Therefore, in addition to the general advice shared here, employers should seek the advice of legal counsel to review their programs and policies, or to provide answers to questions if they are unsure about how the laws affect their policies and programs.

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