Personnel e.bulletin – November 2016

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Current Recommendations on Drug and Alcohol Policies

Prepared for the PHCC Educational Foundation by TPO, Inc.

Drug and alcohol abuse can take a heavy toll on the workplace.  Substance abusers are much more likely to miss work, be less productive, be involved in an on-the-job accident, injure themselves or others, and file workers’ compensation claims. They can affect other employees who have to fix their mistakes.  Also, medical and recreational marijuana legalization in some states and the increasing use of heroin complicate employers’ creation of a drug-free workplace.

Marijuana- and Heroin-Specific Factors 

One of the best ways to establish a drug-free workplace is to create a written drug-free workplace policy.  When writing such a policy, you should keep in mind your state’s laws regarding medical and recreational marijuana.  An increasing number of states are legalizing medical or recreational marijuana.  The states vary in the specific laws, and their policies are constantly evolving.  Local governments are also getting involved.   Stay informed about what your locality and state are doing regarding marijuana and how that could affect your enforcement of a drug-free workplace policy.

At this time, 25 states and the District of Columbia allow some amount of medical marijuana use. See the National Conference of State Legislatures’ (NCSL’s) webpage on state medical marijuana laws for more information (http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx).

Twenty-one states and the District of Columbia have decriminalized small amounts of marijuana, so that possession of small personal consumption amounts is a civil or local infraction rather than a state crime or is the lowest misdemeanor, without jail time. For more on decriminalization, see the NCSL’s webpage on decriminalization (http://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx#7).

You can still maintain a drug-free workplace because marijuana is illegal under the federal Controlled Substances Act. Apart from keeping track of your state and local laws, focus on the actions listed below regarding drug-free workplace policies and drug testing in order to better protect yourself from legal liability while deploying your drug-free workplace strategies.

According to the Centers for Disease Control, heroin use and heroin overdose related deaths have increased dramatically since the early 2000s. Heroin presents challenges that should be considered in implementing a drug testing policy. Because of the nature of the drug, there’s a specific regime that goes into testing for heroin.  If you are concerned about heroin use by your employees, talk to the provider of your drug testing to ensure that the testing regime includes heroin-specific factors.

More generally, you can take the following actions to minimize the risks of substance abuse in your business: as mentioned above, establish a written drug-free workplace policy; implement drug testing; train supervisors; educate employees; and provide employee assistance.  Even if you can’t do all five, choosing as many as possible, as well as familiarizing yourself with relevant law, can help reduce the risk of substance abuse.

Establish a Written Drug-Free Workplace Policy

A written drug-free workplace policy should include a statement of why the program is being implemented; a list of what is being forbidden; and an explanation of the consequences for violating the policy.

The policy should specify the situations in which employees will be tested, what substances are being tested for, the types of tests, the consequences for refusing to be tested, and the consequences if an employee tests positive.  Explain the testing procedures, since many states require specific types of testing for particular substances.

The Substance Abuse and Mental Health Services Administration (SAMHSA) offers helpful tips for creating a drug-free workplace policy, including reasons for such a policy, what to take into account, and basic elements of a good policy (http://www.samhsa.gov/workplace/toolkit/develop-policy).

Implement Drug Testing

You should answer the following questions before implementing drug testing:

  •  What are the relevant federal, state, and local laws affecting employer drug testing?
  •  Who will be tested?
  •  When will tests be conducted (for example, pre-employment, upon reasonable suspicion, post-accident, randomly, periodically, or on return to  duty)?
  •  For which drugs will testing be conducted?
  •  How will tests be conducted?

It’s important to consider federal and state laws regarding drug testing.  For example, the Americans with Disabilities Act (ADA) distinguishes between alcohol and illegal drugs. An illegal drug user is not protected by the ADA, while a person who uses alcohol is protected. An alcoholic is considered a person with a disability and is protected by the ADA as long as alcohol use does not affect job performance. An employer may have to accommodate an alcoholic.

You can and should hold an employee who abuses alcohol to the same performance standards applicable to all employees. However, you cannot discipline an alcoholic more harshly than a non-alcoholic. You can and should prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol during the workday.

Answering the last two questions listed above will help you determine what type of testing you’d like to conduct. Urinalysis, the most common method of testing, is done at a contracted doctor’s office, lab, or any other testing site selected by the employer. Note that a positive urine test does not necessarily mean a person was under the influence of drugs at the time of the test. Rather, the test detects and measures use of a particular drug within the previous few days and has become the de facto evidence of current use. Because alcohol passes rapidly through the system, urine tests must be conducted very quickly after alcohol consumption in order to ensure any degree of accuracy. For this reason, urine tests are generally not helpful in detecting alcohol use as opposed to illicit and prescription drug use, which is more easily traced in urine.

Also, do the following:

  • Allow employees to list any prescription drugs they are taking before the tests.
  •  If the employee tests positive, allow the employee time for explanation and document the conversation for ADA purposes.
  •  Keep drug test records and medical information separate from the employee’s personnel file.
  •  Train supervisors to enforce the company’s policy consistently.
  •  Conduct pre-employment testing after a conditional offer of employment. An employer that conducts testing pre-offer could be violating the ADA.  Also, once someone is employed, many states offer substantial protections to the employee if he or she tests positive.

Be aware of the drug test notification laws in your state. A number of states have laws requiring employers to inform employees of a positive drug test result, and even negative results in some states. That’s why it’s always important to consult with an HR expert or legal counsel when establishing drug testing policies.

Train Supervisors

Whether you’re training supervisors or educating yourself on how to promote a drug-free workplace, the following is necessary:

  • Supervisors must know the company’s alcohol and drug-free workplace policy.
  •  The supervisor must be aware of his or her specific responsibilities in implementing the policy.
  •  The supervisor should be familiar with ways to recognize and deal with employees who have job performance problems that could be related to alcohol and other drugs. The supervisor should be able to recognize impairment if you use reasonable suspicion testing and document the impairment before drug testing.

Also, keep in mind the following principles when training supervisors to confront an employee whose performance problems may be related to drug abuse:

  • Stick to the facts as they affect work performance. Do not accuse the employee of alcohol or drug use. Allow the employee to broach the subject of alcohol or drug use. Focus on performance – not alcohol or drug use.
  •  Do not rely on memory. Have all supporting documents and records available.
  •  Explain company policy concerning performance.
  •  Explain the consequences if performance expectations are not met.
  •  Offer help in resolving performance problems.
  •  Identify resources, such as an Employee Assistance Program (EAP), for help in addressing personal problems.

Educate Employees

Employees will be less likely to engage in substance abuse if they know the damage it can cause both personally and professionally. Include your drug policy and practices as part of new employee orientation and review them annually to ensure that employees are aware of the risks of substance abuse.

Employee education should involve the impact that alcohol abuse and drug use have on the workplace and factual information about addiction and the major drugs of abuse. It should also include the workplace policy statement, drug-testing practices, and what employees can do if they are faced with an alcohol or drug abuse problem.

Offer Employee Assistance

An EAP can help employees decide what to do about their alcohol or drug problem or that of one of their family members, and an employee assistance professional can meet with them and help them develop a plan. Some life and disability insurance plans offer an EAP as part of your benefits, so check there first for coverage. You can also contact the Employee Assistance Professionals Association or the Employee Assistance Society of North America for referrals.

If your company doesn’t have an EAP and you have an employee who has tested positive or volunteered that they have a substance abuse problem, encourage the employee to seek help.  Do not ask the employee if he or she has a substance abuse problem or suggest that the employee does; allow the employee to volunteer the information. Maintain a list of therapists and treatment facilities that specialize in the treatment of alcoholism and drug addiction. Your local National Council on Alcoholism and Drug Dependence is a good resource for information about treatment.

You can also support your employees by offering reasonable time off the job if they require treatment for drug addiction and by providing adequate coverage for chemical dependency in your healthcare benefits. If your business has at least 15 employees, you will need to be mindful of the ADA. If you have 50 or more employees, you will be subject to the Family Medical Leave Act. Consult those laws and HR or legal counsel when determining how to deal with employee leave concerning substance abuse.

Drug policy and testing is a complex issue from a personnel and legal perspective.  If you articulate your policy and take actions to protect yourself legally – especially by consulting federal, state, and local laws, as well as an HR or legal expert – you’ll be more likely to minimize substance abuse in your workplace and avoid litigation.

_____________________________________________________________________________This content was developed for the PHCC Educational Foundation by TPO, Inc. (www.tpo-inc.com). Please consult your HR professional or attorney for further advice, as laws may differ in each state. Laws continue to evolve; the information presented is as of October 2016. Any omission or inclusion of incorrect data is unintentional. Please note this article is not intended to provide legal advice or to substitute for supervisor employment law training.

The PHCC Educational Foundation, a partnership of contractors, manufacturers and wholesalers was founded in 1987 to serve the plumbing-heating-cooling industry by preparing contractors and their employees to meet the challenges of a constantly changing marketplace. If you found this article helpful, please consider supporting the Foundation by making a contribution at http://www.phccfoundation.org.

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