Why Drugs and Safety Don't Mix

Communication and documentation are two of the keys to creating a successful testing program.

• By Peter Cholakis
• Aug 01, 2006

IT'S a fact: 10-14 percent of the U.S. workforce abuses drugs.¹ That's 10-14 percent of workers in any company, so if you think drug abuse doesn't affect your place of employment, you're probably wrong. Research also shows 65 percent of all on-the-job accidents can be linked to drug use. While these findings might surprise safety managers and CEOs, what's more surprising is that few corporations have programs in place to mitigate the problem.

Illicit drug use in the workplace costs the U.S. economy more than $110 billion a year.² That cost is attributed to workplace violence, employee theft, employee turnover and absenteeism, increased health benefit utilization rates, and worker's compensation. And it isn't just marijuana that employees are abusing. Findings show employees are abusing a wide range of drugs, including methamphetamines, cocaine, opiates, and prescription pain relievers, including Oxycontin.

Companies that have implemented drug testing programs using best-practice, process-based approaches have seen impressive results. These innovators have documented reductions in illicit workplace drug use. A large multinational organization saw test positive rates drop from 7 percent to 0.8 percent after introducing its drug testing program, for example. In addition, testing significantly reduces accident rates and provides a safer and more positive work environment.

Factors to Consider when Implementing a Drug Testing Program
When it comes to implementing a drug-free workplace program, organization is key. Not only do ad hoc approaches not work, but also they can cause serious employee moral and legal issues.

Drug testing is a strategic corporate issue that affects employee safety, the bottom line, and an organization's overall competitiveness. Therefore, communication, company-wide involvement, and buy-in are needed across all levels, including CEOs, CFOs, COOs, HR, loss prevention, risk management, occupational health and safety, and employees.

When implementing any drug testing program, it is recommended that the following areas be considered:

• Legal ramifications
• Type of testing: pre-employment, random, post accident, return-to-duty, reasonable cause
• Ease of use/administration
• Immediacy of results.

Legal Issues
There is a general lack of awareness and misinformation about the legal issues surrounding drug testing. This stems in part from lobbying activities of groups attempting to legalize marijuana and a lack of attention to the drug abuse problem by senior corporate executives. Drug testing is being practiced in the U.S. workplace; however, drug testing programs must be fair, fully documented, professionally administered, and clearly communicated to all employees.

The federal government supports drug testing programs in the workplace sector and mandates that federal employees in safety-related fields be drug tested on a regular basis. Many states have drug testing guidelines that outline what an employer should and should not do. It is important that employers determine which laws, if any, exist in the states where they conduct business to ensure their testing rules and procedures comply with state regulations.

Lawsuits involving drug testing can generally be broken down into two categories: those that originate from unhired applicants or employees who refuse to take the test or are discharged or disciplined for positive test results, and those from members of the general public who may be injured or affected by a drug-using employee. Settlements in the former category are typically in the low thousands of dollars, while those in the latter are often in the millions. Overall, courts are holding more companies responsible for mistakes made by poorly trained testing personnel operating without well-conceived guidelines. As courts have declared, there is enormous liability when a company does nothing or does the wrong thing in the face of clear evidence of drug and/or alcohol abuse.

Legal action related to maintaining a drug-free workplace has so far been concentrated in the following six areas:

• Right to privacy
• Freedom from unreasonable searches
• Due process
• Negligence (including negligent hiring, supervision, libel, and slander)
• Contract law
• Discrimination (including racial, sexual, and disability-related).

Cases brought under the first three categories usually involve public employment, although there have been exceptions. Private companies need not be as concerned about those issues if they already exercise good personnel practices. However, the last three--negligence, contracts, and discrimination--clearly apply to all employers.

Types of Testing
There are five common types of testing for drugs of abuse in the workplace: pre-employment, random, post accident, return-to-duty, and reasonable cause.

While companies have been practicing pre-employment testing for more than 20 years, it has been only marginally effective at reducing drugs in the workplace for two reasons. Pre-employment testing, by definition, only addresses a small part of the workplace and ignores the fact that more than 75 percent of drug abusers are currently employed and more than 10 percent of workers currently abuse drugs.

Random testing of the full workforce, while currently practiced by a subset of corporate innovators, has proven to be the most effective deterrent to illicit drugs in the workplace. Post-accident testing has become the norm for larger businesses; most states allow employers to deny worker's compensation benefits to employees who test positive for drugs of abuse.

Return-to-duty testing is a means of enabling employees to come back to work after testing positive for drugs of abuse and subsequently completing an employee assistance program and/or similar substance abuse recovery program.

Ease of Use, Ease of Administration, Immediacy of Results
Ease of use, ease of administration, and rapid results are terms associated with any successful business process employed in a workplace setting. Laboratory-based urine testing has been the accepted method for more than 20 years. The process involves sending individuals to a collection site to donate an observed urine specimen. This process requires two to four days at a minimum. Furthermore, this test is easily "cheated" because few specimen collections are actually observed, and as a result the process has been limited primarily to pre-employment situations. The process is also not gender friendly.

On-site tests for drugs of abuse can be conducted using various biological specimens (urine, hair, blood, and oral fluids). Oral-based tests have recently come to the forefront because of their ease of use, acceptance, and overall functionality for workplace environments. Oral-based testing can be done on site under direct observation of the test administrator and can yield a result in five to 15 minutes. This technology solves the problems typically associated with urine testing, such as sample adulteration and gender and dignity issues.

Communication & Documentation
While any new corporate program will probably be met with some degree of skepticism, a drug testing program can be an especially sensitive issue. Direct and open communication with all constituencies is a must.

Organizations need a clearly written drug testing policy that is distributed to all employees for their signed acknowledgement. The policy should detail that drug abuse creates economic and social consequences that are unacceptable in the workplace environment and should state that illegal drug use will not be tolerated and may result in adverse personnel actions. Sample policies are available from industry experts and can be customized to the needs of a corporation. Diligent communication also should include an education or orientation program for employees.

A comprehensive drug testing program can be viewed as the "operating manual" for a company's drug testing policy and drug-free workplace. It is important to have supporting documentation for all aspects of the program for legal purposes. Documentation can broken down into two categories. The first is program documentation, which would include the drug testing policy, certification papers for the program administrator, and details of the EAP program. It is important to keep accurate and up-to-date documentation of drug test results for employees. Just as you would add disciplinary or performance review documentation to a personnel file, you must be sure to keep all testing results. It is also recommended that all tests be reviewed by a Medical Review Officer (MRO) who can validate the results.

The second category would be documentation that tracks the success of the program over a given timeframe. For example, information that highlights how the employee base as a whole is testing is important in evaluating the program's effectiveness.

Complete and accurate documentation is the best way to protect yourself from future lawsuits.

Employee Assistance
Drugs of abuse testing should be viewed as a means to help secure an employee's and the employer's right to a safe work environment. Should an employee be confirmed positive for drugs of abuse, an employee assistance program (EAP) can provide counseling and referral programs. It may be conducted and/or managed directly by the employer or by a third-party contractor. Programs are always operated in a confidential manner.

Many larger companies provide "first offenders" with access to EAP programs. Smaller businesses may provide access via the employees' health coverage plan. Drug testing during and after participation in an EAP program is common. Testing subsequent to completing an EAP program and returning to work is typically referred to as "return-to-duty" testing.

Pitfalls to Avoid
The benefits of a robust drug testing program are well established. However, organizations should not implement a drug testing program without:

• A written and signed drug testing policy
• Thoroughly reviewing federal, state, and local guidelines
• Performing adequate due diligence of the drug test supplier/manufacturer
• Using certified test administrators
• An MRO service
• Communicating the requirements and benefits of the drug testing program to everyone involved.

While every organization should clearly be advised of the potential risks in executing an improper drug testing program, a safe, secure work environment remains the overriding goal of any corporation. It is critical that every business develop quantitative metrics relative to substance abuse, including but not limited to: on-the-job accident rates, worker's compensation costs, health care utilization rates and associated costs, employee turnover and absenteeism, employee theft and/or inventory shrinkage, and the incidence of workplace violence.

This article appeared in the August 2006 issue of Occupational Health & Safety.

References
1. Substance Abuse and Mental Health Services Administration, Results from the 2002 National Survey on Drug Use and Health: National Findings, September 2003.

2. National Institute on Drug Abuse

This article originally appeared in the August 2006 issue of Occupational Health & Safety.