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Why Employers Need to Update Their Workplace Drug and Alcohol Policies in 2016

By Kathryn J. Russo
  • January 7, 2016

The beginning of a new year is a good time for employers to review their workplace policies to assess what changes are necessary. Employers that conduct drug and alcohol testing should consider updating their substance abuse testing policies now, particularly if they have not done so in several years.

Here are the top 10 reasons why:

1.  Medical Marijuana is Here to Stay. While marijuana remains illegal under federal law, the federal government is backing away slowly from enforcement, and an increasing number of states are enacting medical marijuana laws, some including prohibitions on workplace discrimination against medical marijuana users. Employers should review all applicable medical marijuana laws carefully while considering the possible legal and safety risks.

2.  Educate Employees about the Dangers of Prescription Painkillers and Heroin. A nationwide prescription painkiller epidemic has existed for some time. Because these drugs are prescribed freely by the medical profession, many people do not understand the dangers, including addiction and death. In 2015, the National Safety Council urged employers to educate employees about the risks of using opioid pain medications while also taking steps to avoid potential liability in workers’ compensation and personal injury litigation. (For details, see the NSC report, Prescription Pain Medications: A Fatal Cure For Injured Workers.) Further, employees should be educated about the link between prescription painkiller abuse and heroin addiction, another nationwide epidemic.

3.  Consider Effectiveness of Your Drug Test Panel. Still using the basic 5-panel drug test, consisting of marijuana, amphetamines, cocaine, opiates, and PCP? If so, consider whether that panel is effective to combat the prescription painkiller epidemic as it affects the workplace. Talk to your drug testing vendor to ascertain positivity rates for the popular illicit drugs in your area, weigh any additional testing cost, and consult with legal counsel to ensure that it is legal to expand the panel (some states have restrictions).

4.  If Testing for Prescription Drugs, Be Careful When Making Employment Decisions. Although employers may find it appropriate to expand their drug testing panels to include drugs such as prescription painkillers, they should avoid making adverse employment decisions based on erroneous ideas about those prescription drugs. The Equal Employment Opportunity Commission has sued employers who make adverse employment decisions based on incorrect assumptions about an applicant’s or employee’s use of prescription drugs (e.g., refusal to hire a methadone user).

5.  Require “Safety-Sensitive” Employees to Report Use of Prescription or Over-the-Counter Medications that Could Impact Safety. Employees in dangerous jobs should not report for work while using prescription or over-the-counter medications that could affect their ability to perform their jobs safely. The employer has an obligation to have an “interactive dialogue” with the employee disclosing this usage (under the Americans with Disabilities Act and comparable state laws) to determine whether a reasonable accommodation is possible or whether the employee poses a “direct threat” to the health or safety of himself or others.

6.  Do You Have a Comprehensive Definition of “Refusal to Test”? Many workplace drug and alcohol testing policies fall short because employers do not clearly define what constitutes a refusal to test. For example, employees selected for drug testing often attempt to delay the test. Does your policy make it clear that employees who do not report to a testing site promptly when selected will be terminated?

7.  Train Your Supervisors to Make Reasonable Suspicion Determinations. Do your supervisors enforce your drug and alcohol testing policy effectively? Can they identify reasonable suspicion and act on it? Do you worry that most of your supervisors just ignore the drug and alcohol policy? Update the policy to define supervisors’ responsibilities clearly and train them to enforce the policy diligently and effectively.

8.  Is Your Post-Accident Testing Provision Effective? Many employers struggle with determining what will trigger a post-accident or post-incident drug or alcohol test. Some states restrict or prohibit post-accident testing. Even where it is permissible, a post-accident testing policy must be written clearly and enforced consistently.

9.  Demands for Drug Testing by Business Partners are on the Rise. More and more business partners (host companies) are demanding that employers drug test employees before allowing them to access their premises to perform work. Consider how you will handle these situations, including what to do if an employee refuses to submit to a test or tests positive for prohibited substances.

10.  Is It Legal? Employers must ensure that all provisions of their drug and alcohol testing policies comply with applicable federal, state, and local laws. Failure to do so may lead to monetary damages and statutory penalties.

Jackson Lewis attorneys are available to review and update employers’ policies, helping to ensure they are in compliance.

©2016 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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