Legal Issues: Drug Testing of Employees
Drug testing in the workplace continues to be a "hot button item" for both employers and employees. Your organization is no exception. Acceptance of new and more sophisticated techniques is gaining a foothold throughout the country.
Caution: If you do not test for drugs and alcohol, you may be risking more than you think. Since employers may be held liable for the acts of their employees performed in furtherance of their employment, an employer who does not test for drug use runs the risk that an employee "under the influence" will cause harm to a third party, possibly extending liability to your organization.
Of course, there are some potential downsides to drug testing. Significantly, disgruntled employees or unsuccessful job candidates may bring lawsuits charging invasion of privacy, discrimination and negligence in testing. But this risk is generally outweighed by the catastrophic effects that could ensue if someone is injured or paralyzed by an employee using drugs or alcohol on the job.
When is the optimal time for testing? Usually, a pre-employment, post offer, drug screening is the best way to keep addicts from becoming employees. After that point, testing may depend on the nature of the employee’s job. If an employee is on a job where impairment will be a danger to others, random testing should be employed on a continuous basis. Employees in less sensitive positions may be tested at least once a year.
Finally, any time a manager suspects that drug abuse exists, the employee should be tested. Failure to adequately test – and to take appropriate steps if the employee fails the test – could subject the organization to major liability.
The best way for employers to avoid employee lawsuits relating to testing is to ensure that the program is as fair as possible. For instance:
- The drug policy should be in writing and distributed to all employees.
- The policy should specify the consequences of failing the test.
- Testing should be done professionally and with respect for the employee's privacy.
- If there is a positive reading, provisions should be made for a second test.
- The policy should have an appeals procedure.
While these guidelines are generally acceptable throughout the country, employers must also consider the impact of applicable state laws. It is recommended that you have your organization’s policy reviewed by counsel before it is implemented.
Action idea: Although drug testing can be intrusive, costly and time consuming, it is a necessary evil in the current work environment.
At Lewis, Hooper & Dick, LLC, we offer comprehensive services in human resources. Please contact David Lunzmann at (620) 275-9267.
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