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Legal aspects of drug and alcohol testing in the workplace.

THE USE OF DRUGS AND ALCOHOL in the workplace has been well publicized for over 10 years. Studies conducted by the National Institute on Drug Abuse (NIDA) and other organizations have confirmed that some American workers do use drugs while on the job, but it is difficult to ascertain the exact percentage who do so. Moreover, drug and alcohol abuse contribute to a loss in productivity and an increase in medical expenses and workplace crime. Several corporations have determined that employees who tested positive for drugs had substantially higher medical insurance claims than those employees who tested negative.

Drug and alcohol testing has increased significantly in the United States during the past decade. Surveys show that in 1983, only 3 percent of Fortune 500 companies had drug testing programs, By 1988, the percentage exceeded 30 percent, and more recent surveys indicate that 50 percent of major corporations screen employees for drug use. The reasons most often cited by employers for conducting drug tests are public safety, employee safety and fitness for duty of individual employees. However, drug testing is subject to a number of legal restrictions, although in certain instances drug testing or at least drug policies are required by law.

While it is impossible to provide a short list of necessary components of a drug testing program guaranteed to withstand legal scrutiny in every state, the following safeguards have generally been recognized as essential: notice to employees; consent to testing; use of an independent laboratory certified by NIDA that specializes in drug testing; confidentiality of results; and a written drug and alcohol policy that is applied in a non-discriminatory manner and that sets forth the consequences of policy violations.

It is essential for employers to give as much notice as possible to employees regarding drug testing programs. Employers should publish their drug testing policies in employee manuals, on posters displayed in prominent places, in newsletters, in employment applications and on signs. In fact, one of the least expensive ways to screen out applicants for employment who are drug users is to post a sign at the building or plant entrance stating: "This company tests for drugs."

Consent to testing must be obtained from employees before a drug testing program is implemented, unless a federal or state law requires such testing. One method is to expressly state in the employment application that consent to drug testing is a condition precedent to employment. Another method is to require employees to sign a written acknowledgment that they have received the employment manual containing a statement of the drug testing program and consent to it.

In order to ensure that drug tests yield accurate results, employers should use independent laboratories certified by NIDA, as well as state and local licensing authorities. It is also critical for employers to maintain strict confidentiality of test results to avoid possible liability for defamation, intentional infliction of emotional distress or other common law torts.

Courts and labor arbitrators uniformly have held that drug testing programs and the consequences of violations of drug policies must be explicitly stated in written policies. Policies that prohibit the possession, use, sale and distribution of drugs and alcohol on the employers' premises are reasonable and appropriate. Bear in mind that the failure to apply drug and alcohol policies in a non-discriminatory fashion can expose employers to liability under several different recently enacted federal laws.

There are six types of drug testing typically used by employers: pre-employment testing of applicants; "for cause" testing where performance problems are evident; random, periodic and post-accident testing; and return to duty/post-rehabilitation. Pre-employment screening is the most common method used by employers. "For cause," or reasonable suspicion, testing is the second most common method. Random testing is prohibited by certain states, but is required for motor carriers engaged in interstate commerce that employ 50 or more drivers under federal regulations issued by the Federal Highway Administration,

In determining which type(s) of testing method(s) to use, employers must first ascertain whether any state or federal laws require, prohibit or specify permissible methods of testing. For example, certain states prohibit random testing unless authorized by federal law, but permit drug testing if there is reason to believe that job performance is impaired as a result of alcohol or drug use. Also, employers of union members must negotiate with the employees' labor representatives regarding drug testing programs.

Constitutional Considerations

The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches - such as the procurement of a blood sample or urine sample - and seizures by federal and state officials and agencies. It is applicable to public employers and to certain private employers acting pursuant to federal regulations.

In 1989, the U.S. Supreme Court issued two decisions that clarified the permissible scope of drug testing under the Fourth Amendment. In Skinner rs. Railway Labor Executives' Association, the U.S. Supreme Court upheld the U.S. Department of Transportation's regulations requiring breath, blood and urine testing of employees involved in train accidents. The court held that the public's compelling interest in safe transportation outweighed the privacy interests of employees. In National Treasury Employees Union rs. Von Raab, the U.S. Supreme Court held that the U.S. Customs Service's regulations that require drug testing for employees who are directly involved in drug enforcement or who carry firearms were reasonable searches.

Federal Statutes and Regulations

Within the past five years, two federal statutes relating to drug abuse policies have been enacted. Those statutes are The Drug-Free Workplace Act of 1988 and The Drug-Free Schools and Communities Act amendments of 1989. In addition, numerous regulations have been issued by the U.S. Departments of Defense and Transportation.

The Drug-Free Workplace Act of 1988 requires all employers with federal contracts equaling or exceeding $25,000 to certify, as a condition of receiving contract awards, that they will provide and maintain a drug-free workplace. All individual contractors must also provide the necessary certification under the act regardless of the dollar amount of the contract. This act also requires all recipients of federal grants to certify to the appropriate agencies that they will provide and maintain a drug-free workplace. !'Grant" is defined as an award of financial assistance and includes block grant and entitlement grant programs.

Under the act and subsequent regulations, federal contractors and grantees are required to publish a policy statement notifying employees of prohibitions against the unlawful manufacture, distribution, dispensation, possession or use of controlled substances in the workplace. They also must establish an ongoing drug-free awareness program that informs employees of: the dangers of drug abuse; the contractor's or grantee's drug-free workplace policy and possible penalties for violations; and the existence of any available drug counseling, rehabilitation and assistance programs.

Federal contractors and grantees must also inform employees, in writing, that as a condition of employment on a covered contract or grant, employees must abide by the terms of the drug-free workplace policy and notify the employer of any conviction for violation of any criminal drug statute within five calendar days after conviction. In turn, the employer must notify the contracting officer or the federal granting agency, in writing, of any employee convicted of illegal drug activity in the workplace. The notice must be provided within 10 calendar days after learning of the conviction.

Furthermore, federal contractors and grantees are required to impose sanctions against or initiate remedial measures for any employee convicted of a workplace violation of a criminal drug statute. A contractor or grantee may take "appropriate" personnel action, up to and including discharge, or refer the worker to a rehabilitation program. Disciplinary or remedial action must be taken within 30 calendar days after notice of the employee's conviction.

Violations of the act include: the submission of a false certification; the failure to comply with the requirements specified in the certification statement; or the employment of so many employees convicted of criminal drug offenses in the workplace that it appears that the contractor or grantee has not made a good faith effort to comply with the act, The consequences of violations of the act are severe. Sanctions against contractors include suspension of contract payments, termination of contracts for defaults and, as a final sanction, debarment from participation in federal contract activities for five years. Sanctions against grantees include the suspension of grant payments, the termination of grants and debarment from participation in future grants for a period of five years.

Department Rules

A U.S. Department of Defense (DOD) rule that became effective on October 31, 1988, requires the agency's contractors to establish programs to ensure that employees in "sensitive" positions neither possess nor use illegal substances. The DOD rule applies to any contract involving workers who either have access to classified information or are in positions that, for reasons of national security or health and safety, require a high degree of trust and confidence. The program must provide for employee assistance, including drug education, counseling and rehabilitation; supervisory training to detect possible drug use; self- and supervisory referrals to treatment for substance abuse; and the means, including testing, to identify illegal workplace drug users. Thus, employee drug testing programs are mandated.

Employers are responsible for determining the extent of testing based on the type of work being performed under the contract, the duties of each contract employee, and the risks to public safety that could result from the employee's failure or inability to properly perform contract tasks. However, the drug testing requirements do not apply if they are inconsistent with state or local law or conflict with an existing collective bargaining agreement.

The U.S. Department of Transportation (DOT) regulations issued on December 1, 1989, with an effective date of January 2, 1990, require that drug abuse programs in the aviation, motor carrier, railroad, maritime, mass transit and pipeline industries include random drug testing. The regulations apply to approximately four million transportation workers whose jobs have safety or security implications. The rules are set forth in the drug-testing regulations issued by the department and in separate sets of rules issued by six operating administrations under the DOT: the Federal Highway Administration, the Federal Aviation Administration, the Federal Railroad Administration, the Urban Mass Transportation Administration, the U.S. Coast Guard, and the Research and Special Projects Administration.

Among the employees subject to random drug testing are: commercial airline pilots, mechanics, flight attendants, aircraft dispatchers and airport security screening personnel; drivers of buses, trucks (weighing 26,000 pounds or more) and trucks of any size carrying hazardous materials; railroad workers; state and local mass transit employees; merchant mariners; and employees performing operation, maintenance and emergencyresponse functions at pipeline and liquefied natural gas facilities.

The regulations provide that employees who perform safety- or security-related functions must be tested for marijuana, cocaine, opiates, amphetamines and phencyclidine. Prior to testing, employers must develop, implement and maintain clear and well-documented procedures for the collection, security and laboratory analysis of urine specimens. Employees must be given written instructions that explain their responsibilities to provide specimens. Employees must also be given the opportunity to discuss confirmed positive test results for specific drugs.

The regulations also address the privacy and confidentiality aspects of testing. Employees have the right to provide urine specimens in private, except under certain specified conditions. The regulations provide that employees can be required to sign consent or release forms authorizing the collection and testing of specimens and the release of results to employers. Confidentiality of test results must be maintained, but tested employees who submit written requests must be given access to their test records.

As noted above, the six operating administrations of the DOT have also issued sets of regulations. For example, regulations issued by the DOT's Federal Highway Administration, and upheld by the U.S. Court of Appeals, require random drug testing and post-accident drug testing as well as pre-employment, reasonable suspicion and periodic testing.

Federal Laws

There are a number of federal laws that impact employers' rights and obligations to develop and maintain drug abuse programs and testing. For example, the primary purpose of the Civil Rights Act of 1991 was to reverse parts of seven U.S. Supreme Court decisions handed down since 1989 that were adverse to the interests of alleged victims of employment discrimination. The act provides for increased damages and jury trials in cases of intentional race, sex, religious and disability discrimination.

Drug testing programs that are carried out in a discriminatory manner will be held to be in violation of the new act and other civil rights laws. Employers must be careful to ensure that drug abuse policies, procedures and tests are enforced in a manner that does not result in a disparate impact on members of a protected class. If the procedures and tests do have such an adverse impact upon protected class members employed by a given employer, the employer bears the burden of demonstrating "that the challenged practice is job-related for the position in question and consistent with business necessity."

The Americans with Disabilities Act of 1990 (ADA) is a civil rights law that prohibits discrimination against qualified people with disabilities in employment; public services and transportation; public accommodations; and telecommunications services. Employers "engaged in industry-affecting commerce" fall under the requirements of the act, as do employment agencies, labor organizations, and state and local governments. Most of the public services, public accommodations and employment (for employers with 25 or more employees) provisions became effective in 1992.

The ADA prohibits discrimination in all employment practices. These practices include job application procedures, hiring, firing, advancement, compensation, training and the other terms, conditions and privileges of employment. The law applies to recruitment, advertising, layoffs, leaves, fringe benefits and all other employment-related activities.

Under the ADA, an "individual with a disability" is defined as a person with a physical or mental impairment that substantially limits one or more major life activities. The ADA does not protect individuals who currently engage in the illegal use of drugs. Employers may terminate the employment of persons who illegally use drugs without liability under the ADA. "Currently engaging" in the use of drugs does not necessarily mean use on the day of or within days of the employment action in question. The exception for drug users applies to use that has occurred recently enough to indicate that the individual is actively engaged in the drug activity. Also, the ADA allows employers to hold alcoholics to the same employment standards as other workers. However, persons who have successfully completed or are participating in a supervised drug rehabilitation program and are no longer engaging in the illegal use of drugs or who have otherwise been successfully rehabilitated are covered by the ADA.

The Rehabilitation Act of 1973 prohibits employment discrimination against "otherwise qualified handicapped individuals" by the federal government, federal contractors and recipients of federal grants. The act provides that a "handicapped individual" does not include an alcoholic or drug abuser whose current use prevents him or her from performing the duties of the job in question or whose employment would constitute a direct threat to property or to the safety of others. However, reformed alcoholics and drug abusers who have successfully completed supervised drug rehabilitation programs and are no longer using drugs are protected by the Rehabilitation Act.

The Employee Polygraph Protection Act, which became effective in 1988, bars most private employers from using polygraph tests for pre-employment screening. Only private employers who provide various security services and drug companies whose employees have access to controlled substances are exempt from the law.

To the extent that an employer tries to use polygraph testing in connection with drug abuse programs or drug testing, the employer must comply with the Employee Polygraph Protection Act. Compliance with the Drug-Free Workplace Act and regulations issued by the DOT or other federal agencies do not authorize the use of polygraph testing unless done in compliance with the Employee Polygraph Protection Act.

The National Labor Relations Act requires employers of employees who are members of unions to negotiate with union representatives with respect to the terms and conditions of employment. Employers may not unilaterally impose "material, substantial and significant" changes in existing terms and conditions of employment. The courts have held that drug testing programs are a required subject of collective bargaining. However, one National Labor Relations Board in 1989 concluded that the unilateral implementation of pre-employment drug testing does not violate the act.

Common Law Claims

It is also important to note that the improper handling or communication of drug test results can create certain common law claims for employees. Such claims include invasion of privacy, false imprisonment, intentional infliction of emotional distress and defamation.

Invasion of privacy requires an individual to prove that the drug test constituted an intentional intrusion upon his or her privacy and that the intrusion was highly offensive. False imprisonment can occur if an employee is prevented from leaving a work site or testing area until he or she has been tested. Intentional infliction of emotional distress requires an individual to prove that intentional acts by the employer are outrageous, extreme in degree, atrocious and beyond the bounds of decency. Defamation requires an individual to prove that the employer has communicated false information about the employee that injures the employee's reputation.

The development of a proper drug and alcohol abuse program is required by certain federal laws and regulations but is subject to other legal restrictions and challenges. In formulating drug abuse programs, it is imperative to review the state constitutions and statutes applicable to a particular employer's business because compliance with federal laws does not guarantee compliance with individual state constitutions and laws. Generally, states with drug-testing provisions prohibit random testing of employees or job applicants and require employers to develop written drug abuse policies, confirm positive test results and protect employee privacy interests. A lawful drug and alcohol program must also be tailored to the specific needs and requirements of each employer and its employees.

Henry D. Fellows Jr. is a partner in the law firm of Fellows, Johnson, Davis & La Briola in Atlanta, GA.
COPYRIGHT 1993 Risk Management Society Publishing, Inc.
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Author:Fellows, Henry D., Jr.
Publication:Risk Management
Date:Mar 1, 1993
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