Drug testing policies are intended to protect the employer and make very explicit the expectations for their employees. The best policies are written in plain english and have been researched to reflect any state and local regulations. This section will provide an overview of the key decision points for both DOT and NonDOT employers, provides links to resources about applicable laws, and provides some templates/samples which are a good starting point.
Key Decision Points
Some employers have little choice in what type of program they implement as their policy must align with the requirements of a regulatory entity, while others have a large amount of leeway in how they choose to test.
Decisions for both DOT and NonDOT Policies
Zero Tolerance vs. Rehabilitation
A drug testing policy must outline the consequences for an employee who tests positive for a controlled substance. There are certain requirements by the DOT, such as: immediate suspension of all safety sensitive functions, evaluation by a Substance Abuse Professional, and further drug testing (See Return to Duty section for further detail about DOT requirements). The employer, however, can determine if they wish to allow that employee to continue to work for them - and perhaps financially support them through the above process. Should the employer allow an employee to remain employed they have selected a ‘Rehabilitation’ policy; conversely, should they wish to draw a strict line and have termination be the result of any positive test then they would write a policy with ‘Zero Tolerance’.
This is a tricky decision for many companies. Let’s talk through a common scenario that our clients run into. A company decides that they want to have a zero tolerance policy and then, perhaps years later, a family member who works for the company tests positive for a controlled substance. Per the company policy that family member would need to be terminated from employment. We often hear the question, “I’m the owner, can I not just change the policy?” The answer of course is yes, you can modify your policy, but the optics of doing so to accommodate on individual may be perceived very poorly within your organization and from a legal perspective any ‘retroactive’ changes would leave the employer exposed to legal risk. The opposite happens just as often - someone tests positive for a substance and the company would like to terminate them but the employee agrees to abide by the rehab process and thus continues their employment. We can be helpful in deciding which is the best policy for your organization.
Who does the policy apply to?
Some employment policies apply to a whole organization and other are carved out for different classes of employees. For example, a distributing company may wish to have their sales and office staff tested differently than their DOT regulated commercial drivers. In that case the employer would need to develop two policies and create a delineation between them.
Having multiple policies can be confusing and so many employers choose to keep them as close as possible to ensure they are treating both groups equitably and that they adhere to both policies fully.
Options for NonDOT Policies
Non Regulated policies often allow for greater flexibility for the employer to design their testing program. Consider questions such as:
- What types of substances are you testing for (Street drugs and/or prescriptions, alcohol)?
- In what instances will you require testing (Pre-Employment, Random, Post-Accident)?
- How will the test be done (Oral fluid, hair, or urine testing)?
All of these questions, and the ones mentioned in the prior section need to be explicitly addressed in your policy. It is okay to update your policy as your company changes and it is often a good idea to - drugs of abuse often change over time. Any time you update your policy it is best practice to have each employee acknowledge the changes so they are aware of the standards to which they will be held.
Applicable Laws and Regional Resources
Drug Free Workplace
The Drug Free Workplace Act of 1988 set forth substance abuse criteria for some federal contractors and all federal grantees as a condition of receiving a contract or grant from a federal agency. The Act does not apply to companies who do not have, nor intend to apply for, contracts/grants from the federal government. Covered entities are required by law to establish and maintain a drug-free workplace policy.
The act is applicable to any organization who receives a federal contract of $100,000 or more, or any organization who receives a federal grant of any size. Each federal contract/grant stands on its own in this regard and, technically, only employees involved in the contract are covered by the act. Employers may be able to only enforce a drug-free workplace for only the portion of their employees involved in the contract, however this can get messy and is often easier to institute a company-wide policy for consistency in adoption.
The act leaves a lot of room for interpretation as to the specifics of the drug free workplace policy, but at a minimum the organization must:
- Prepare and distribute a formal drug-free workplace policy statement. This statement should clearly prohibit the manufacture, use, and distribution of controlled substances in the workplace and spell out the specific consequences of violating this policy.
- Establish a drug-free awareness program. This program should inform employees of the dangers of workplace substance use; review the requirements of the organization's drug-free workplace policy; and offer information about any counseling, rehabilitation, or employee assistance programs (EAPs) that may be available.
- Ensure that all employees working on the federal contract understand their personal reporting obligations. Under the terms of the Drug-Free Workplace Act, an employee must notify the employer within five calendar days if he or she is convicted of a criminal drug violation.
- Notify the federal contracting agency of any covered violation. Under the terms of the Drug-free Workplace Act, the employer has 10 days to report that a covered employee has been convicted of criminal drug violation.
- Take direct action against an employee convicted of a workplace drug violation. This action may involve imposing a penalty or requiring the offender to participate in an appropriate rehabilitation or counseling program.
- Maintain an ongoing good faith effort to meet all the requirements of the Drug-free Workplace Act throughout the life of the contract. Covered organizations must demonstrate their intentions and actions toward maintaining a drug-free workplace. Their failure to comply with terms of the Drug-Free Workplace Act may result in a variety of penalties, including suspension or termination of their grants/contracts and being prohibited from applying for future government funding.
There are several consequences an organization may face as the result of failing to comply with the requirements of the Drug Free Workplace Act of 1988.
- Payments for contract or grant activities may be suspended.
- Contract or grant may be suspended or terminated.
- Contractor or grantee may be prohibited from receiving or participating in any future contracts or grants awarded by any federal agency for a specified period, not to exceed five years.
- Compliance with the Act’s requirements is reviewed as part of normal federal contract and grant administration and auditing procedures.
OSHA Non-Retaliatory Post Accident Testing
New regulations issued by the Occupational Safety and Health Administration (OSHA) regarding Recording and Reporting Occupational Injuries and Illnesses became effective on December 1, 2016. The regulations prohibit employers from retaliating against employees for reporting workplace injuries and illnesses (OSHA 29 CFR 1904). While in practice this sounds like a great thing, it has created a great amount of confusion around drug testing policies. Prior to this rule, it had been acceptable for all drug testing policies to simply state that their employees were subject to Drug / Alcohol testing after any injury or damage. This rule introduces the idea that post-accident drug and alcohol testing can be construed as a retaliatory practice. Let’s use an example - someone has a repetitive motion injury and then must take a drug and alcohol test. The testing may be viewed as a deterrent to reporting the injury.
Recognizing the intent of the rule allows us to give some guidance around how to develop the policy; a couple guidelines:
- Post-accident drug and alcohol testing is still allowed.
- There must be a “reasonable possibility” that drug or alcohol use caused or contributed to the reported injury or illness to justify requiring the employee to submit to a drug and/or alcohol test.
- This increases the importance of having managers trained in ‘Reasonable Suspicion' and applying their knowledge to the accident to determine if testing is warranted. They needn’t have suspicion of the individual, per se, but must have a reasonable basis to investigate whether drug or alcohol usage contributed to the damage.
- Some drug testing policies (for non-exempt companies, see below) should be reviewed to modify blanket requirements for post-injury or post-accident drug or alcohol testing as these could be considered a violation by OSHA.
Exemptions: All federally regulated testing requirements (DOT, HHS, etc.) are exempt from this regulation, as are state workers’ compensation testing provisions or testing under a state drug-free workplace program to comply with workers’ compensation provisions. Furthermore, it does not apply to pre-employment, reasonable suspicion, random, return-to-duty, or follow-up testing.
Americans with Disabilities (ADA) rules
An employer establishing a drug testing policy should take the Americans with Disabilities Act (ADA) into account.
The ADA does not prevent an employer from taking steps to combat the use of drugs and alcohol in the workplace. It specifically allows an employer to prohibit the use of drugs and alcohol in the workplace and to prohibit employees from being under the influence of drugs or alcohol at work. An employer can discharge or deny employment to current users of illegal drugs without fear of being held liable for disability discrimination.
Government Regulated Industries/Functions
There are a number of industries which do need to comply with Federal Regulations. We cover these in depth in the DOT section.
Despite the aforementioned instances of federal policies, there is no truly overarching federal drug/alcohol testing requirement or guidelines. This leaves the door open to states to address workplace drug use and drug testing. Some states require employers to put their testing program in writing. Other states prohibit disciplinary actions against employees who test positive without a second confirming test, or they require that testing be performed only in state-approved labs. Because states have their own approach to drug testing issues, employers should carefully review the law in the states in which they operate before they adopt a drug testing policy.
One thing to note is that there are 12 states which have mandatory rules which must be followed for any non-federally regulated drug testing program. These states are: They are Connecticut, Hawaii, Iowa, Maine, Maryland, Minnesota, Montana, Nebraska, Oklahoma, Oregon, Puerto Rico, Rhode Island, and Vermont.
Here is a great resource for determining state by state laws.
Templates / Samples
Disclaimer: These policies are intended for informational purposes only. We do not represent that they will suit your individual needs nor that they have been updated for any recent changes in regulations. As employee policies are legal documents they should be reviewed by legal counsel.
For DOT testing, please see this document to see if your policy is meeting the minimum requirements:
DOT Drug Testing Policy Samples: