A guide to drug testing do's and don'ts in the workplace

Drug testing employees feels fraught with legal risks.  There are privacy laws and HIPAA (Health Insurance Portability and Accountability Act) which protects employees private medical information.  Not to mention, ad-hoc drug testing can sometimes be applied with the appearance of inadvertent discrimination.  You can implement a low-risk drug testing HR policy and procedure for your business by keeping a few tips in mind. The main rule of thumb when it comes to drug testing is you must first have a written policy in place. Here is a quick list of dos and don’ts when it comes to Employment Drug Testing.

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Do

• Create a policy and procedure in your Employee Handbook that gets applied consistently for all new hires and employees.  
• Obtain a signature for your company procedure for drug testing prior to administering the drug test.
• Consider testing for drug use prior to a new hire’s start date for positions that involve safety concerns such as driving, positions that interact with children, or for employees that operate heavy or dangerous machinery to prevent substance abuse and work under impairment.
• Assign a protocol to keep results confidential.  Ensure the employee that reviews results received HIPAA training.
• Check state and local laws regarding each type of drug testing program, such as swab test, blood test, hair follicle drug tests, and breathalyzer and other alcohol tests.

Don’t

• Administer ad hoc for some applicants but not others.
• Drug test until you have extended an offer.
• Allow an employee to start work until you have reviewed the drug test results.
• Send an employee for a reasonable suspicion drug test if there is not a trained employee on reasonable suspicion to sign-off on the drug test.

There are four primary forms of employment drug testing: Pre-Employment testing, Reasonable Suspicion, Random and Post-Accident Drug Testing Programs.  Below you will find tips and tricks for implementing each type.  

Pre-employment drug testing policies

Pre-employment drug testing policies can be critical for positions that may be a safety concern.  For many driving positions, the Department of Transportation or your insurance provider may even require it.  Keep in mind however, that where employees have medical authorizations to take certain medications, depending on your state law, you may or may not be allowed to prohibit employment based on prescribed medications. Because medical information is being provided, implement safeguards to protect employee’s private information in accordance with HIPAA.   Additionally, apply a pre-employment drug testing policy consistently.  Picking and choosing which applicants to require a drug test for can look like discrimination if a protected class is inadvertently targeted.  

Reasonable suspicion drug testing

Employers may also conduct drug testing when they have a reasonable suspicion that an employee may be under the influence of drugs or alcohol.  In reasonable suspicion, at least two symptoms that indicate the employee is under the influence must be documented, like slurred speech and the smell of alcohol or cannabis about the employee.  It is critical however that all employees have first signed a waiver that employees are aware of this policy.  The procedure must then be followed consistently.  Having only a few designated employees in the company like HR or a senior manager sign-off on reasonable suspicion will help you to avoid a claim of discrimination.   Those designated employees should also be trained on reasonable suspicion.  Check with your liability insurance provider.  Many offer reasonable suspicion training at no additional charge.  Last, check your local laws to ensure that reasonable suspicion testing is authorized in your area.  

Random drug testing

For employers who have employees working with children, regulated by the Department of Transportation or other government agencies, or working in dangerous positions, these businesses sometimes implement a random drug testing program. These programs have a system for selecting employees at random to submit for a drug test.  Be sure to talk with an expert before setting up a random drug testing program so that you are fully equipped with how to handle a positive result and how to ensure your random selection process does not inadvertently discriminate against employees.

Post-accident drug testing

When employees are injured on the job, many companies require an automatic drug test.  If an employee’s drug test is positive, then the company’s insurance or workers compensation may not cover any associated medical bills.  Automatic post-accident drug testing is illegal in some states so check local laws before implementing this program at your business.Once you have drafted a procedure, added it to your handbook, obtained HIPAA training and reasonable suspicion training, you can implement a drug testing policy with less risk.