Workplace Substance Abuse and Drug/Alcohol Testing: An Issue Employers Cannot Ignore

Substance abuse, whether it be drugs or alcohol, is a major epidemic in the United States as 60% of all illegal drugs in the world are consumed within the United States. As such, this epidemic has bled over into the employment relationship and employers are now struggling with what to do. It is SESCO’s strong opinion that employers cannot ignore the statistics any longer. Employers must become proactive and develop strong workplace policies to address the issue. What do the statistics tell us?

Substance Abuse in the Workplace – Costs to the Employer

Employers are losing approximately $100 billion a year through:

• Healthcare expenses
• Workers’ compensation: 38% to 50% of all workers’ compensation claims are related to substance abuse in the workplace; substance abusers file three (3) to five (5) times as many workers’ compensation claims.
• Medical costs: substance abusers incur 300% higher medical costs than non-abusers.
• Absenteeism: substance abusers are 2.5 times more likely to be absent eight (8) or more days per year.
• Lost productivity: substance abusers are one-third less productive.
• Employee turnover: it costs a business an average of $7,000 to replace an employee. This cost does not include the impact that it may have on your customers, your quality, other employees’ morale and even workplace violence.

  In addition to the costs employers are experiencing, there are additional statistics that will shock all of us as citizens as well as employers. If you don’t think substance abuse in the workplace is an issue, prepare yourself for the following statistics.

• 73% of drug users are employed.
• Almost 1 in 10 employees has a substance abuse addiction.
• 24% of workers admitted to drinking during the workday at least once in the past year.

• 15% of U.S. workers report using alcohol or being impaired on the job in the last year.
• One-third of employees know of the illegal sell of drugs in their workplace.
• 20% of young workers/millennials admit to using marijuana on the job.
• Nearly 1 in 4 Americans between the ages of 18-35 have illegally used drugs on the job.

  Obviously due to the statistics, all employers must expect that they have a percentage of their employees that either have a substance abuse problem or are working under the influence. As such, it behooves employers to become proactive and develop compliant and effective drug-free workplace policies and practices. You owe it to your organization, your good name and reputation, your valued employees and those that you serve.

  An effective drug-free workplace policy will accomplish two (2) major things for your organization:

1. It will send a clear message that alcohol and drug use in the workplace is forbidden.

2. The policy will encourage employees who have problems with alcohol or drugs to voluntarily seek help or voluntarily leave the organization.

Furthermore, the drug-free workplace policy will exist to assist your organization as follows:

• Protect the health and safety of all employees, customers and the public.
• Safeguard employer assets from theft and destruction.
• Maintain quality and company integrity and reputation.
• Will assist in complying with the Drug-Free Workplace Act of 1988 and other applicable laws such as DOT requirements.
• Reduce workplace costs associated with substance abuse.
• Avoid significant liability.

  When considering the negative effects of implementing a drug-free workplace policy, the primary two (2) issues employers experience are cost (there is a cost of testing and time in administration) and a perception, especially from the younger generations, that the employer is invading their privacy. Both of these negatives, in SESCO’s opinion, are minor as compared to the unseen realities in costs of substance abuse in the workplace.

  The fortunate aspect of a drug-free workplace policy is that federal and state courts and cases are very pro-policy if, in fact, the policy is drafted properly and administered consistently and fairly. As experts in drafting and implementing drug-free workplace policies, SESCO provides the following considerations:

• Who will be subjected to testing? – SESCO recommends all employees be subjected or eligible for testing. In the least, any position that involves safety, public or customer service or operates equipment should be considered.
• What substance is prohibited? – SESCO strongly recommends that illegal substance and abuse of prescriptions be included.
• What consequences are there for failing a drug test? – SESCO strongly suggests that you implement a one strike and the employee is out policy. Many larger employers, who can afford to work through the process, implement second or third strike programs. One primary reason that SESCO does not recommend such multiple strike opportunities is that the recidivism rate (those employees who have problems) will reuse 89% of the time. So even if we are compassionate and provide opportunities for rehabilitation, the likelihood that the employee uses again is significant.
• If you implement second or third strike policies, SESCO suggests that expectations be articulated to include the type of treatment, confirmation of completion of treatment, letter of understanding allowing the employer to randomly test the employee once they return to work for at least one (1) year, or preferably indefinitely, and that the employee have some skin in the game, re: pay for their treatment program if insurance in not accommodating.
• Probably the most important decision an employer must make will be the type of testing that will be implemented which may include:
  • Pre-employment
  • Random
  • Reasonable suspicion
  • Workplace injury
  • Return to work
• Who will conduct the test and how?
  When considering the types of testing to be implemented, SESCO strongly recommends the following:

  1. Pre-employment – The most common and most effective workplace testing is pre- employment testing. In fact, it is estimated that 60% of all employers conduct applicant testing. Most employers will include in their advertising, at their facility entrance or on their website that they are a drug-free workplace and that pre-employment testing is conducted. This serves a number of purposes but primarily informs those applicants that if they have a problem, not to apply. This greatly reduces a number of applicants who have issues. On the other hand, the public who have substance abuse problems, know of the employers who do not conduct pre-employment testing or have a drug-free workplace policy. These employers become magnets for abusers and subsequent costs as noted before.

  A few words about pre-employment drug testing includes ensure that your policy meets with state employment regulations as many states have issued specific laws regarding what substances can be tested for, who is required to pay for the test, what is considered impaired, etc. In drafting policies, SESCO will ensure that your policy meets with all state and federal employment regulations. Further, pre-employment testing should be conducted after a tentative offer of employment has been made and prior to the applicant’s start date. This is not required by law but practical in that this last step prior to employment will avoid significant cost as to testing a number of applicants.

2. Reasonable Suspicion – The next type of testing SESCO recommends is reasonable suspicion testing for current employees. This is where the employer requires an employee to submit to substance abuse testing based on a reasonable belief that the employee may be under the influence or abusing substances. Reasonable suspicion testing is lawful for both the public and private sectors. In fact, reasonable suspicion testing is mandatory for certain public sector employers and CDL holders. Examples of reasonable suspicion may include:

• Personal observation of an employee’s conduct, appearance, behavior, speech or odor.
• Information regarding an employee’s conduct, obtained from a reliable source, or that is independently corroborated, re: an employee complaint, customer complaint or even someone in the public tipping the employer off. Even nowadays with social media, pictures posted on social media of abusing substances would be considered reasonable suspicion.

  Clients will contact us concerning this issue most commonly in what is considered reasonable or not. Many times we will fall on the side of reasonable suspicion because the risks and liability are so great that if the employer knew or should have known that the employee was under the influence and subsequently hurt him or herself, hurt others in the workplace or someone in the public, the employer could be held liable. Clearly what is not reasonable suspicion may include:

• Poor performance alone is not sufficient enough to rise to reasonable suspicion of drug use.
• An employee merely being “associated” with someone who is known as an abuser is not reasonable suspicion.

3. Post-Accident – The next recommended testing would be post-accident. Post-accident testing is recommended and further supported by the Drug-Free Workplace Act of 1988. In fact, employers who implement an effective drug-free workplace testing policy to include post- accident testing will receive up to a 5% discount on the workers’ compensation cost. Post- accident testing should be conducted immediately following an accident involving or caused by an employee.
4. Return to work – Finally, SESCO recommends return to work substance abuse testing. This would include a return from a workers’ compensation leave of absence or any general medical leave of absence of significance where the employee was under the care of a physician (versus a flu or virus). This type of testing is important in today’s environment simply because many physicians will prescribe pain or other medication that prevents an employee from doing their job safely. In addition to a prescription that may create a fitness for duty issue, as we all know, abuse of prescription medication is today’s epidemic. As such, when prescribed, many employees will be addicted and abuse the prescription. Therefore, upon a return to work from a medical leave of absence, it is critical that employers test the employee prior to returning to include a fitness for duty as well as substance abuse test to ensure that, in fact, employees are fit for duty and not a direct threat to themselves or others in the workplace. Even if the employee is taking their medication as prescribed, this does not mean that they are necessarily fit for duty, re: medication may create drowsiness or other side effects that create a safety issue in the workplace.

5. Random Testing – There is one final type of testing that employer’s need to consider. This is random testing wherein an employer will randomly select employees for testing. Random testing is legal and many employers implement such policy. Random testing is, in fact, required by public sector employers as well as DOT. Random selection may be done by a computer generated process or simply pulling names or social security numbers out of a hat.

SESCO is cautious about recommending random testing simply because of the client issues that we’ve had to manage in the past. Inevitably, an employer will implement a random testing policy, randomly test employees, and find out that key or other employees tested positive and were shocked and do not want to necessarily take action such as termination. Just be careful what you ask for if you implement a random testing program, because you will be surprised who will fail.

A few thoughts as to what is protected and what is not are as follows:

• Current use of alcohol or drugs is not a protected disability. However, having a prior history of abuse is protected as a disability (Americans with Disabilities Act) if the applicant or employee is currently clean and not using. An employer cannot act upon someone’s mere history of abuse or use.
• Under the Family and Medical Leave, drug addiction/dependency is a “serious medical condition” only to the extent the employee is obtaining treatment. An employee cannot receive Family and Medical Leave for absences simply due to drug or alcohol use. They must be under the care of a physician or treatment center.
• Finally, and most importantly, abuse of legal and prescription drugs is not protected. As such, those employers in states where marijuana is legal as a medical or even recreational drug does not mean the employee can use as they deem appropriate. Marijuana use would be treated just as alcohol. An employer has every right to ensure that their employees are fit for duty, not impaired and behave in a safe and professional manner.

  In addition to developing policy and testing procedures, testing may not be enough to combat substances brought on premises. As such, SESCO recommends that your policy also contain searches of employee and employer property. It is legal for employers to search, of course, employer property such as lockers, desks, etc. without advanced notice. It is further legal for employers to search employees and their belongings such as pocketbooks, lunchboxes, backpacks and even vehicles that are on employer property. Many employers will engage outside law enforcement to assist with such searches, but certainly an employer can do this on their own.

Once an employer develops a policy they can implement the policy immediately and subsequently test even on the same day. However, most of our clients will develop and implement a policy and then subsequently communicate the policy to all managers and employees throughout the organization stating that testing will begin in a week or another timeframe allowing employees to voluntarily seek assistance or address the issue with the company. Additional dissemination should include training managers and supervisors on a complete understanding of the policy and their potential liability as an individual should they not enforce or they ignore a substance abuse issue. Managers should also be trained in recognizing potential problems/employees under the influence and subsequently how to document their concerns. Finally, managers should be trained on how to respond to a workplace crisis and how to approach an employee is a possible situation of testing. Further, it is important that all employees receive orientation on the policy as well. This would include the reason and purpose of the policy and the organization’s commitment to workplace safety. It would include key aspects of the policy to include testing procedures and processes and would also include open- door complaint opportunities and seeking assistance voluntarily.

Finally, we receive the following question regularly from our clients: “Can an applicant/ employee beat a drug test?”

The answer is yes, if the employee or applicant is savvy and aware of available masks. Of course, most users will know of these available masks. You can simply Google masking substances and you will find a number of sites that sell synthetic urine or oxidizing agents that will break up any detectible amounts in someone’s urine. There are other “tricks of the trade” that users utilize to mask a drug test. However, with a comprehensive drug testing program as SESCO recommends, SESCO’s should be able to detect problems and concerns and ultimately prevent this significant employer-employee issue within the workplace.

Additional client questions that we receive on a regular basis to include SESCO’s answers are as follows:

Client Question: “I received an anonymous tip that a certain employee is using drugs. Should/can I test that individual?”

SESCO’s Answer: Yes you can and furthermore, you should as now you know or should have known that the employee may be under the influence.

Client Question: “I saw a picture of an employee drinking and smoking pot on Facebook. Can I test him?”

SESCO’s Answer: Yes, we would consider this reasonable suspicion.

Client Question: “Is it worth the cost of conducting pre-employment drug testing?”

SESCO’s Answer: Absolutely. Pre-employment drug testing is the cornerstone of an effective drug-free workplace policy. If we don’t hire users, this will greatly reduce the chances that we will have problems within the workplace. Further, conducting pre-employment drug testing sends a message to the community and subsequent applicants that your organization takes it serious and most users will not apply.

Client Question: “If I suspect that someone is under the influence at work or post injury, should I personally drive them to the medical facility to conduct the test?”

SESCO’s Answer: This is a common question and typically we recommend that first, the employee do not drive themselves. The last thing we need is an employee driving themselves to the emergency room or testing facility who are under the influence. Create policy that addresses this which may include a designated driver within the workplace, contacting the authorities or an ambulance or contacting a family member.

Client Question: “Someone is driving a company vehicle and has an accident, should I test them?”

SESCO’s Answer: Yes. All company vehicle or equipment accidents should result in testing. In fact, your insurance provider will consider this type of testing positive and possibly may reduce rates.

Client Question: “If the individual who is driving the vehicle who has been in an accident tests positive, can the employer be liable for the accident, injury or even death?”

SESCO’s Answer: Absolutely.

Client Question: “If an employee provides me a copy or proof of prescription, do I have to allow them to work?”

SESCO’s Answer: No, but certainly we can require a fitness for duty to ensure that 1) if the medication is taken as prescribed that the employee is, in fact, fit for duty and further ensure that the prescription is not being abused.

Client Question: “If I use temporary employees through a third party agency, am I liable for their illegal substance abuse?”

SESCO’s Answer: Yes, even though most staffing or temporary agencies explain to the employer that the employer bears no liability, in fact, the temporary employee is an employee of both the employer and staffing agency. The employer has a responsibility to their employees, the customers that they serve and the public at large, that anyone working for them whether it is through a temporary staffing agency or not, be fit for duty.

Client Question: “Subsequent a positive drug test, can I require an employee to complete an employee assistance rehabilitation program?”

SESCO’s Answer: Yes – in fact, it is strongly recommended that if you are going to allow an employee at least one (1) or more strikes that to be reemployed they must successfully complete a program as identified by the employer. Identifying a program is important as if the employee selects a program it is going to be an outpatient treatment program and one that they can potentially manipulate.

Client Question: “Medical marijuana is legal in our state, can I still restrict its use at the workplace?”

SESCO’s Answer: Yes.

Client Question: “An employee’s wife called for her husband’s absence stating that he had been arrested for a DUI. What should we do at this time?”

SESCO’s Answer: The key term in this question is “arrested.” Because someone has been arrested doesn’t necessarily mean that they are guilty or will be convicted. At this point, the employer may want to suspend with or without pay until the matter is resolved. If the employee violates absenteeism policies, then this may be another avenue for separation. If and when an employee is convicted for a DUI or for any other criminal offense, an employer is free to separate at that point.

Client Question: “An employee tested positive and is adamant, in fact, angry, that the test was wrong and that they’ve never used the drugs that they tested positive. What should we do at this point?”

SESCO’s Answer: This debate will be between the employee and the testing facility. The rules and regulations regarding testing and testing facilities are so strict that it is almost impossible that there be a false positive. Consider the results from the provider as fact and allow the employee (ex-employee) to debate the positive test with the testing facility.

The bottom line is that employers are now having to deal with this unfortunate reality of substance abuse. However, policy can be developed very easily and implemented effectively and with little or no cost. SESCO can assist in reviewing your current substance abuse policy and/or in developing an effective policy as well as in helping implement and train managers and employees.