September 14th, 2021 | Sterling

Effective Drug-Free Workplace Administration

Illicit drug and alcohol users can bring significant risk to the workplace. Such individuals are generally less productive, more prone to errors and accidents, and more likely to file workers’ compensation claims. In other words, substance abuse can lead to:

• Unsafe work environments for employees and the public at large
• Substandard and unproductive work performance
• Significant liability and expense to employers

The National Survey on Drug Use and Health (NSDUH) is a leading source of statistical and trend information on drug and alcohol use among Americans. Results from the 2019 survey concerning adults (age 18 and older) identified that:

• There were 53.2 million users of illicit drugs within the previous year
• Marijuana continued as the most widely used drug followed by prescription pain relievers
• Marijuana use continued to increase in adults age 26 and older
• There were 80.5 million people who classified as past month binge or heavy alcohol users
• There were 14.1 million people identified as having an alcohol use disorder
• There were 7.4 million people identified as having an illicit drug use disorder
• Polysubstance use was prevalent among substance users
• Substance use and mental disorders were closely linked

The National Council on Alcoholism and Drug Dependence (NCADD) estimated in 2017 that substance abuse cost American employers $81 billion due to high employee turnover rates, reduction in productivity, workplace theft, increased absenteeism, etc. Additionally, some 70% of abusers were estimated to be employed.

As substance abuse will no doubt continue to be an important concern for American employers, workplace testing must be a key component of every employer’s workplace safety policies. Employers must therefore ensure that their workplace testing policies are current, well socialized across all employees and supervisors in their organization and, above all, tightly enforced each and every day.

What is a Drug-Free Workplace Program?

The term “Drug-Free Workplace” (DFWP) refers to an employer’s zero-tolerance against substance abuse/misuse to ensure safety in the workplace and on public/private property. The cornerstone of an effective DFWP program is a comprehensive employer policy that ensures the program is grounded in:

• Not hiring individuals with unmanaged substance abuse issues
• Deterring employees from abusing drugs and alcohol
• Taking action when employee impairment is suspected
• Consistent documentation and record keeping
• Uncompromising enforcement of company policy
• Compliance with all applicable regulations

Employers who implement an effective DFWP program can expect to realize several benefits in the workplace, including:

• Reduced workplace accidents and safety risks
• Reduced employee absenteeism, turnover, and theft
• Improved employee morale and productivity
• Early identification and referral of individuals for rehabilitative assistance
• Reduced disability and workers compensation costs
• Increase in public confidence that employees are working safely

In fact, recognizing the toll that substance abuse can take, there are several states that offer workers compensation premium discounts for employers who implement a state prescribed DFWP program.

How is a DFWP Program Established?

A comprehensive workplace policy is important, both for supervisors who will be charged with enforcing policy, as well as the job candidates and employees who will be required to abide by its provisions. The detail that follows is relevant for federally mandated DFWP testing programs, as well as employer programs that are not federally mandated.

A Designated Employer Representative (DER) is a key employee for helping an organization achieve its DFWP testing objectives, and typically holds broad authority to make decisions regarding drug/alcohol testing processes and functions. Depending on the size of the organization and number of work locations, an employer may have several DERs deployed across all locations. In such instances, a “primary” DER will coordinate DFWP responsibilities with “local” DERs to ensure consistent oversight and enforcement of policy throughout the organization.

General responsibilities of a DER include ensuring:

1. Strong familiarity with employer policy and applicable regulations
2. Awareness of all employees and contractors performing work functions covered by the employer’s DFWP policy
3. Oversight of testing programs managed directly by covered contractors
4. A signed acknowledgement of policy from all covered employees is retained on file, including subsequent signed acknowledgements relative to policy updates
5. Necessary supervisory training for recognizing signs and symptoms of possible substance abuse is completed (refresher training at least every 2 years strongly recommended)
6. Correct chain-of-custody/control forms (CCFs) are being used for testing
7. Procedure is in place to discreetly notify an employee to proceed for testing
8. Federally mandated testing is performed prior to employer testing when instances present for both tests to be performed
9. Qualified service agents (collectors, alcohol test technicians, laboratories, medical review officers, etc) are in place to support employer policy
10. Service agent contact information is maintained and at the ready
11. Testing is performed within a reasonable timeframe following notification of the employee to test
12. Procedure is in place to immediately remove an employee from covered work following policy violation
13. Attempts to remove employees from covered work following policy violation are documented, including notification from the collector, MRO, or breath alcohol technician (BAT) regarding the violation
14. Testing is retaken when necessary following a cancelled test
15. Physician referral coordination following an employee’s inability to provide a sufficient specimen for testing (i.e. “shy bladder” or “shy lung” situations)
16. Procedure is in place to learn of a Reasonable Suspicion or Post-Accident test that has been
    directed by supervision
17. Necessary supervisory documentation is received following Reasonable Suspicion, Post-Accident, or Random Testing excusal situations
18. Timely receipt of all test results and other communications from a collector, technician, MRO, or other service agent, as necessary
19. Job candidates and employees are timely informed of test results and are aware of process for disputing violations
20. Covered employees have access to educational material concerning professional and personal impact of substance abuse
21. Qualified Employee Assistance Program (EAP) and/or Substance Abuse Professional (SAP) contact information is provided to an employee who violates a testing requirement (under federal testing, a job candidate must also be provided SAP contact information following a violation)
22. Process exists for employee to present questions regarding DFWP policy and are answered timely and sufficiently
23. Readiness for external audit of the employer DFWP program
24. Periodic review of employer policy to ensure alignment with current business operations/practices and applicable regulations (at least annually recommended)

The purpose of a comprehensive policy document is to ensure all essential aspects are recorded for the purpose of achieving employer objectives and intended outcomes. As previously mentioned, policy is essential for supervisors as well as covered employees. In the event of a donor dispute, a well-written policy supporting employment actions and decisions made will be essential for limiting employer exposure and risk.

Below is a general illustration of key policy components that should be considered, and are relevant for testing programs mandated by regulation, or by individual employer objectives:

Zero Tolerance & Authority

• Specification of zero tolerance of:
• Drug/alcohol use/misuse
• Onsite possession, sale or other prohibited employee behavior concerning drug/alcohol use
• Authority to test (i.e., regulation and/or employer requirement)
• Employee work functions deemed “safety-sensitive” or “at-risk” which will require testing under employer policy

Use and Disclosure

• Expectations surrounding use of alcohol and state authorized marijuana
• Expectations surrounding use of prescription and over-the-counter medication,
• Alcohol abstinence period prior to start of work

Testing Scenarios & Requirements

• Pre-hire testing
• Post-hire testing
• Instances/scenarios when employees will be tested for alcohol
• Mandating criteria for testing following an accident/incident
• Random selection/testing and administration, including selection frequency, testing period, and drug/alcohol testing rates
• Process for handling insufficient donor provision of specimen

Policy Violation

• Donor behavior that will be deemed a refusal to test
• Test results and incidents that will be deemed a violation of policy
• Medical review of non-negative results
• Employment consequences following policy violation

Documentation

• Testing documentation preparation/retention requirements
• Supervisor training
• Employee education and/or training
• Oversight of contractor testing program

What Regulations Apply?

Federally mandated testing programs are entirely based on federal regulation. The Department of Health and Human Services (HHS), Department of Transportation (DOT), the Nuclear Regulatory Commission (NRC), and the Department of Defense (DOD), for example, each have specific regulation that must be followed by employers engaged in safety-sensitive industries. These regulations oftentimes are the basis for state and local requirements that are established. For employer testing programs that are not mandated by federal regulation, the employer must be knowledgeable of state and local requirements in the regions of the country where they operate. Consequently, employer engagement with qualified legal counsel is very important to ensure harmony between employer objectives, policy, and regulatory requirements that may apply.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.