Labor and Employment Law blog

Drug Testing Job Applicants - Five Reasons Why Employers Prefer It Over Testing Employees

There are a number of reasons why the testing of job applicants is much more common than the testing of incumbent employees. If you are considering to establish a drug testing program only for job applicants, knowing why other employers have such a program might help your decision making.

1. Testing of job applicants is more legally defensible than the testing of employees. For one thing, there is no employer-employee relationship. There are no issues of job performance. Employers generally do have a right to make being "drug-free" a condition of employment prior to hiring. And job applicant drug testing is less likely to be of concern to union representatives than employee testing - less likely to result in union-filed grievances.
2. Job denial for applicants, unlike employee dismissals, are not complicated by benefits, severance pay, or pension issues.
3. Job applicant drug testing is less likely to hurt employee morale than employee drug testing.
4. Job applicant drug testing, by keeping drug users out of the workforce, is cost-effective because it has a preventive impact on drug-related workplace problems. It also frees up limited employer resources so employers can provide more comprehensive rehabilitation programs for those employees who do develop drug abuse problems.
5. Job applicant drug testing is likely to have the greatest deterrent effect, since it communicates a forceful and consistent anti-drug abuse policy at the outset of the new employees' career.

For more information on this subject, we suggest you read Bill Reynolds article on pre-employment drug testing. The U. S. Chamber of Commerce also has an article on drug testing that includes a map and links to specific state drug testing information.

[This article is an excerpt taken from What Every Business Manager And HR Professional Should Know About Federal Labor And Employment Laws, a guidebook written specifically for employers and human resource departments.]

Under What Conditions Should You Test For Drugs? Here's Seven Options.

This article is the last in a short series of articles we have written on drug testing in the workplace. If you have not had the opportunity to read the previous articles, here are the titles and links.

1. The Six Key Elements Of A Drug Abuse Prevention Program
2. Drug Testing In The Workplace...Six Reasons Why Companies Do It.
3. Drug Testing In The Workplace - Six Reasons Why Companies Don't Do It

When an employer decides to include drug testing in its drug abuse prevention program, it must decide under what conditions to test. Here are seven options employers may want to consider:

• Job applicant testing: The drug screening of job applicants prior to employment is the most common employer drug testing practice, has the greatest deterrent effect, an is the most cost-effective. Keeping drug users out of the workforce helps avoid costly problems involving safety, productivity and absenteeism. Bill Reynolds has written a very informative article about how pre-employment drug testing can positively affect your worker's compensation cost. It's worth a read.
• The testing of employees in safety-conscious jobs: Jobs involving the safety, health, and security of the employee, his or her co-workers, and the public, represent a compelling public interest and may warrant special employer precautions to assure that its workforce is "drug-free."
• Incident-driven drug testing: Specific incidents may trigger employer suspicions of drug abuse and warrent drug testing. Examples include a medical emergency that appears to be drug-related, the observance of drugs or drug paraphernalia at an employee's desk or work station, or other evidence that an employee's behavior is influenced by drugs.
• Post-accident investigation drug-testing: On-the-job accidents that may involve human error often trigger drug testing of those employees involved.
• Retesting of employees during and after rehabilitation: Employees who are or have participated in drug rehabilitation programs, are commonly and appropriately retested for the presence of drugs in their systems. Without random testing, successful rehabilitation may be difficult to assure.
• Periodic drug testing with advance notice: Scheduled in advance, usually as part of an annual employee physical, and uniformly administered, periodic testing is common for jobs involving stress, requiring physical endurance, or involving senior-level decision making.
• Random, unannounced drug tests: Random testing without pre-notification is most likely to identify drug users. However, it also is most likely to create morale problems and trigger union grievances or employee legal claims. Employers should proceed with caution before selecting this option.

If you are interested in obtaining more information about businesses and organizations that offer drug testing services, this google link offers a sizeable directory, and may be a good place to start your search.

Although not part of our drug testing series, in future articles we will present information and ideas regarding drug testing and the American with Disabilities Act, the Drug-Free Workplace Act and some special regulations involving the transportation industry

Drug Testing In The Workplace - Six Reasons Why Companies Don't Do It

Earlier this week, we presented six reasons why companies do drug testing in the workplace. Today, we offer an opposing viewpoint. We suggest that you read both articles, should you be considering a drug testing program.

Although there are very good reasons to incorporate drug testing in a drug abuse prevention program, there are also good reasons to not include drug testing. Here are six reasons why companies and organizations have decided not to implement a drug testing program:

1. To avoid morale problems: Drug testing can upset even those employees most opposed to illegal drug use. Unless handled fairly and with full explanations, drug testing can create resentment in the workforce.
2. To avoid union grievances or union organizing: Most unions actively oppose drug testing in the workplace. An attempt to implement drug testing may defeat or detract from other collective bargaining goals. In a non-union shop, it can provide union organizers with a major issue to be used against the employer.
3. To avoid an "overreaction:" Based on a thorough analysis, employers may conclude that the best response is no response, or that a prevention program without testing is sufficient.
4. To avoid additional expenses: Drug testing, if done correctly, is expensive. Rehabilitation is also. Some companies decide that a full, comprehensive drug abuse prevention program that includes drug testing is non-affordable.
5. To avoid legal claims: Some employers see the implementation of a drug testing program as an invitation to legal challenges, and avoid testing to avoid litigation. While it is agreed that an employer must be aware of the laws covering drug abuse, if drug testing is clearly needed, the bigger question is should an employer avoid it merely to minimize the risk of litigation?
6. To observe privacy interests of employees: An employer may feel that the legitimate individual rights and privacy interests of employees outweigh a company or societal interest in preventing drug abuse.

If you are interested in reading more about drug testing in the workplace, we suggest you read an excellent article by Jonathan Cracknell.

In a final, follow-up article to be written sometime in the future, we will present to any employer considering drug testing, some options as to when to conduct such tests.

Drug Testing In The Workplace...Six Reasons Why Companies Do It.

In an article published on March 24, we presented "The Six Key Elements of a Drug Abuse Prevention Program." One of these elements is drug testing. As a follow-up to that article, we are going to post two articles this week on whether or not to implement a drug testing program. The first article will present six reasons why companies implement drug testing programs. The second article will present six reasons why companies don't.

Here then, are six reasons why companies implement drug testing programs:

1. To help the community: By addressing the drug abuse problem effectively, employers "do their part" in addressing the needs of the community. All segments of society must fight the war on drugs.
2. To maintain productivity: At this time of heightened national concern about the competitiveness of American business, employers cannot afford to carry significant numbers of employees who are one-third less productive because they have drugs in their systems.
3. To protect employees and customers: Workers on drugs present a clear and present danger to themselves, co-workers, and members of the public. Employers cannot and should not allow the safety and health of others to be jeopardized by drug abusers in the workplace.
4. To contain health care costs: Drug users are not only more likely to injure others on the job, they also incure four times the medical expenses of the average employee. Some state workers' compensation laws deny overage if the injury resulted from the use of illicit drugs or alcohol. Taking advantage of these statutes is virtually impossible without testing.
5. To deter drug use: If drug users know a company makes "being drug-free" a condition of employment, they are more likely to refrain from illegal drug use or to apply for employment elsewhere.
6. To rehabilitate employees: To the extent that drug testing uncovers drug dependency problems and forces people to face up to them, drug testing can be constructive, humane and even life-saving.

Whether or not to establish a drug testing program is an important decision that should not be made lightly. Hopefully, the above reasons as to why and our follow-up article as to why not, will be helpful.

The Six Key Elements Of A Drug Abuse Prevention Program

Employer programs for drug abuse prevention have three major goals. First, to keep drug abusers out of the work force by screening job applicants. Second, to deter employees from developing a drug abuse problem. And finally, to rehabilitate employees who have a drug abuse problem.

However, employers should keep in mind that this last goal - rehabilitation - is the ultimate and most humane purpose of a drug abuse prevention program. Employers should also recognize that no testing at all is highly preferable to inaccurate testing.

If you are considering establishing a drug abuse prevention program or need to evaluate a program in place, here are six key elements a successful drug abuse prevention program should include.

1. Commitment: It is essential that top management on an organization-wide basis understand how comprehensive a drug abuse prevention program must be, and commit to that level of involvement.
2. Analysis & Development: Thoroughness is necessary. Analyze personnel, productivity, safety and health records to see if your company has a problem significant enough to warrent a corporate program. If so, start by developing a full, comprehensive, written company policy that includes whether drug testing will be performed and what disciplinary actions are anticipated.
3. Education & Training: Training of supervisors and managers is critical - particularly regarding how they should react to a workplace drug incident. You will also need to "sell" your drug abuse prevention program to your employees.
4. Drug Testing: If your program includes testing, you must commit the necessary resources to ensure that you have a professional drug testing program that eliminates inaccuracies, misidentifications or unconfirmed tests.
5. Disciplinary Action: Consistency is the key. Do not selectively enforce your program. And be prepared to make the same response for all employees, irrespective of their seniority and their value to the organization.
6. Rehabilitation: Employee assistance programs (EAP's) best serve the ultimate goal of rehabilitation. EAP's generally include counseling, medical monitoring, treatment, retesting, and family support and reinforcement. They can be effective, cost-effective, and good for employee morale.

In future articles, we will present some guidelines on how to prevent liability for drug testing and list reasons why or why not to test.

Setting Up An Alcohol Abuse Prevention Program

Alcohol abuse is a major contributor to lost productivity in the workforce and growing health care costs.

A report issued by the George Washington University Medical Center states that alcohol cost employers $134 billion in productivity costs, mainly due to missed work. And while 17 million people have an alcohol problem, only 3 million get help.

Employers who want to reduce costs from ineffective performance by impaired workers, accidents, lost time from work, and disabiity should consider the possible advantages of establishing an alcohol counseling program.

If you are considering such a program, you might find the following guidelines helpful.

1. Provide a policy statement affirming the belief that alcoholism is an illness that can be treated successfully in most cases. The employer must show a readiness to help those with drinking problems.
2. Both the employer and employees should jointly develop and administer the program.
3. Make available information and education about the nature of alcohol so as to dispel myths.
4. Middle management or, in larger organizations, the first-level supervisors are the key individuals to ensure implementation of an effective control program. However, they must be trained to recognize the signs of declining performance and how to approach the problem with an employee.
5. Professional staff services must be available once a troubled employee has been identified. There should be someone (i.e. a doctor) to whom the employee can be referred to for diagnosis and assistance.
6. Early identification of the problem should be emphasized. An alcoholic can be masterful at developing rationales to deny the existence of a problem.
7. There should be controls in place to ensure that ongoing efforts are not abandoned once an employee has been referred for assistance. Reviewing progress made by employees is critical.
8. The records of people who voluntarily seek assistance should be maintained on a confidential basis. If employees are aware of this, they will be more likely to seek help.

For more information, you might like to check out the Center for Substance Abuse Prevention website, funded by the Department of Health and Human Services.

Drug Abuse And Drug Testing In The Workplace

In recognition of Drug-Free Work Week, which begins on October 16th, HR Web Cafe has posted an excellent article about drugs in the workplace referencing some advice offered by the DOL regarding workplace drug-free programs.

The negative effects of drug abuse on the workplace are well documented and include lost productivity, increased absenteeism, increased on-the-job accidents, increased medical insurance costs and increased employee theft.

Perhaps drug abusers themselves tell the story most clearly.