Our Second Part of Drugs and Alcohol in the Workplace: The Aspects of a Well-Defined Drug and Alcohol Program.
It is obvious, but often overlooked—formulate your policy.
The first step in developing a comprehensive program on employee use and abuse of drugs and alcohol is to create a clear policy that advises employees of the company’s new approach that the employer will take in identifying, treating and disciplining employees who were found to have possessed, ingested or worked with alcohol or drugs in their systems. Employers should build in a lag time between notice of the new policy and when any actual testing for drug or alcohol use will begin. The notice period allows any hardened users to quietly leave the work force without any further employer action or records of the employee. It is also wise to give employees notice to minimize morale problems and claims of unfair treatment.
Give Notice of the Company’s Testing Standards. The next aspect of a drug and alcohol use program are the specific rules for making employees to submit to drug and alcohol tests and deciding which individuals will be tested.
Testing options include:
- Testing based on specific impaired employee behavior.
- Testing of employees who are performing high risk duties or are responsible for the safety of others (e.g., drivers of vehicles, persons involved in the manufacture of critical components, etc.).
- Testing of the whole work force, often on a random basis.
- After accident tests.
- Applicant testing.
Employers usually test employees that fall into two or more of the above categories, depending upon that employer’s perception of the nature of the problem.
Notify employees of the breaches of the policy and/or refusing to submit to drug and alcohol tests.
The third step in a typical drug and alcohol use program informs the employees how the company will react to those employees who breach the company’s drug and alcohol rules as well as the consequences of their refusing to submit to drug and alcohol tests.
Before implementing a drug and alcohol testing policy, employers must determine if their state has a drug testing statute and what it requires. In some states drug testing must follow very specific procedures and that certain information be provided to employees or applicants whose test comes back positive.
Often employees bring actions for defamation and/or invasion of privacy actions against their employer in connection with drug and alcohol testing. Some of the ways employers can take to prevent defamation claims include:
- Using only reliable information regarding possible drug and alcohol issues.
- Maintaining the utmost confidentiality throughout the entire process when dealing with drug and alcohol issues, only those individuals who have an absolute need to know about them should be involved in the process.
Private employers are subject to common law invasion of privacy tort claims. For example, employers and counselors can be found liable for invasion of privacy where a counselor releases confidential information.
Consider this: Bill W, a supervisor for a fast food chain, has a falling out with top management that leads to his termination. Bill W claims that he was terminated for failing to promote an individual who was the son of one of his superiors. His employer contends he was terminated because of poor performance and for violating company policy prohibiting employees from using illegal drugs. Confronted with the drug charge, Bill W takes a polygraph test that he later claimed he did only because he was coerced to do so. Bill W was terminated upon his employer’s receipt of the polygraph examination. Bill W claims that his employer violated his privacy rights by offensively or objectionably prying into something that was a private matter. In some jurisdictions, those that recognize the tort of invasion of privacy, Bill W has probably stated a valid cause of action.
Employers can minimize their exposure to common law privacy actions by:
- Avoiding enforceable ‘‘expectations of privacy’’ by advising employees and applicants of the extent of their privacy rights in the employment environment and, most importantly, of the nature of the inquiries the employer may make with respect to usage of drugs and alcohol.
- Obtaining consent to inquiries about otherwise private matters through appropriate waiver forms.
- Using the least obnoxious methods to obtain the most relevant information, by the most credible means, and thereafter maintaining all information related to this process in the most confidential manner.
There is going to be some blowback from a drug/alcohol testing/policy; that is, such a policy can erode employee morale by creating a sense of distrust and authoritarianism from the employee perspective including the perception that the employer is trying to control employee behavior outside of the workplace.
In our next discussion the practical implementation of a drug and alcohol policy.
Part 1 of Drug & Alcohol Problems In The Work Place Our Final Look at Drugs and Alcohol in the Work Place.