J. Drug and Alcohol Testing

The sharp rise in company interest in drug testing has been fueled, in part, by high profile drug deaths. More companies are resorting to drug testing to identify drug users and reduce on-the-job accidents. Critics state that indiscriminate testing violates employees' rights of privacy, due process and freedom from unreasonable search and seizure. Proponents cite its success (e.g., the military's program has dramatically lowered drug use in the armed forces) and growing confidence in the reliability of current testing methods. Recent statistics reflect the magnitude of the problem within the applicant pool and existing workforce. For example:

• At least six million Americans are cocaine users and 100 million are alcohol users;

• The typical recreational drug user in the workplace is three times as late as fellow employees and has 2.5 times as many absences of eight or more days;

• A recreational drug user is five times more likely to file a workers' compensation claim and is involved in accidents 3.6 times more frequently than other workers.

The following are some practical strategies, rules and guidelines for companies to consider and follow when implementing a drug or alcohol testing program.

Know the law. Some state and local governments have passed laws prohibiting testing of employees for drugs or alcohol. State law varies dramatically. For example, Utah generally permits employee testing with required procedural safeguards to ensure that the testing is done in a reasonable and reliable manner with concern for an employee's rights of privacy. Connecticut only permits individual tests where a particular employee is suspected of being under the influence of drugs or alcohol and his impaired state adversely affects job performance. However, under Connecticut law, employees who test positive may not be fired if they consent to participate in and successfully complete a rehabilitation program.

Case decisions in other states prohibit employee testing in positions that are not safety or security sensitive as a matter of public policy, particularly programs involving a large number of employees where there is no suspicion of individual wrongdoing. In New York, the State Division of Human Rights prohibits drug or alcohol testing of applicants before and after an offer of employment has been made unless the testing is based on a "bona fide occupational qualification."

Counsel Comment #75: Since the law differs so dramatically from state to state, is constantly changing, and may be even more stringent than the requirements of the Americans With Disabilities Act, it is critical that you obtain current advice from counsel before implementing any testing policy.

Under current federal law, companies represented by unions cannot unilaterally implement a testing program without bargaining with the union over changes and conditions of employment. To do so would violate The National Labor Relations Act. However, the Supreme Court has upheld an employer's right to test employees for drugs and alcohol, rejecting a union's argument that testing is reasonable under the Fourth Amendment only when based upon individualized suspicion that an employee is impaired by drugs or alcohol on the job. In one case affecting railway employees, for example, the court ruled that the government's policy of testing all employees was important in assuring the safety of the railways and therefore outweighed the privacy rights of non-suspected workers en masse.

The Drug Free Workplace Act. The federal Drug Free Workplace Act of 1988, effective March 18, 1989, has had a major impact on federal contractors and grantees with federal contracts, requiring them to conduct anti-drug awareness programs and require workers to report any drug-related convictions as a condition of receiving federal funds. The law requires company-contractors ranging from weapons manufacturers to publishing companies and employee-grantees rang- ing from state governments to drug abuse treatment facilities to publish strict statements prohibiting drugs and educating employees on substance abuse. Employers must also report to the procuring agency any workers convicted of workplace-related drug activities and certify that they will not condone unlawful drug activity during the performance of the contract.

Under the Drug Free Workplace Act, to receive a federal contract for the procurement of any property or service in excess of $25,000 or for any employer or individual receiving any grants, regardless of the dollar amount, from the federal government, an employer must certify that it will provide a drug-free workplace. This includes publishing and distributing a statement advising employees that the unlawful manufacture, distribution, dispensation, possession or use of any controlled substance (including prescription drugs) is prohibited. The employer must institute a "drug-free awareness program" to inform employees about the dangers of drug abuse in the workplace, the employer's drug-free workplace policy, any drug counseling, rehabil- itation, and employee assistance programs which are available and the penalties (e.g., discharge) that may be imposed upon employees for violations of the anti-drug policy.

Each employee working on the contract or grant must be given a copy of the above statement. The statement must indicate that the employee will abide by the terms of the statement and that he/she will notify the employer if convicted of a criminal drug statute within five days of conviction (employees must be hired pursuant to written contracts informing them of these requirements). The employer must then notify the contracting agency of such occurrence within ten days of receiving this notice. Contractors and grantees must make a "good-faith" effort to continue to maintain a drug-free workplace through implementation of the above.

One section discusses penalties of suspension or termination from federal contracts for companies that violate the above conditions. For example, each contract awarded by a federal agency is subject to the suspension of payments or termination of the contract if the agency determines that:

The contractor made a false certification, failed to notify the agency within ten days of an employee's drug conviction, or failed to notify employees of the dangers of drug use (and/or failed to require them to sign a written contract to this effect).

Once notified of a problem, the contractor can defend his/her policies and actions in writing or at a hearing. However, if a final decision is entered against the contractor, it shall be ineligible for award of any contract by any federal agency and for participation in any future procurement by any federal agency, for a period specified in the decision, not to exceed five years.

TIP: Although the federal law creates a heightened drug-awareness policy, it does not mandate drug testing for company applicants or employees. Nor does the act explicitly sanction such testing as a way for a federal contractor to satisfy the requirements of the act. However, the existence of this law means that companies working for the federal government must conform to its more stringent guidelines rather than follow conflicting state laws.

The Department of Defense has issued regulations which require that a drug-free workplace clause be included in contracts with contractors involving access to classified information, and that certain drug tests become standard for workers involved in safety-sensitive positions. Although these regulations do not appear to relate directly to most companies, they may do so in the future.

The Americans With Disabilities Act. Perhaps the most significant change affecting drug and alcohol testing involves the ADA. In reality, the ADA provides greater protections for individuals with disabilities than do many state laws, so all companies must re-evaluate their policies.

The ADA specifically excludes from protection any employee or applicant who is currently engaged in the use of drugs. Although drug-testing processes are not specifically mentioned, the interpretive guidance to Section 1630.3 (a) through (c) states that "employers may discharge or deny employment to persons who illegally use drugs, on the basis of such use, without fear of being held liable for discrimination." Section 1630.16(b) allows employers to prohibit alcohol as well as illegal drug use at the workplace, and states that they may require that employees not be under the influence of alcohol or illegal drugs in the workplace, and may hold an employee who uses illegal drugs or is an alcoholic to the same qualification standards for employment or job performance as other employees.

However, an employer may not discriminate against an individual who is not currently engaged in illegal drug use but who has successfully completed a supervised drug rehabilitation program or is currently participating successfully in such a program.

TIP: Administration of drug tests is not considered to be a medical examination, so prehiring drug tests by employers do not violate the ADA's prohibition on medical examinations prior to an employment offer. In light of this, many companies are considering administering drug tests earlier in the appli- cant-screening process to eliminate drug users earlier in the process and save the company the expense of a post-hiring medical examination. Additionally, since the act neither prohibits nor encourages drug testing, employers probably have the right to conduct ongoing drug-testing programs with employees. Speak to competent labor counsel for more details if applicable.

Counsel Comment #76: Companies which administer pre-employment drug tests to applicants who test positive for drug use must be careful not to automatically disqualify them should the applicant apply for another chance of employment within a fixed period of time (such as six months thereafter). The reason is that such an individual may be deemed a "qualified individual with a disability" who may be able to prove successful completion of or who is in the midst of successfully participating in a rehabilitation program and is protectable under Section 104 of the ADA. Avoid inflexible drug policies with a fixed waiting period for future employment; rather, evaluate each case on its own merits.

Alcohol use and the ADA. The act makes a distinction between drug users and alcoholics. Individuals disabled by alcoholism are entitled to ADA protection. This includes applicants who would automatically not be considered for a job in the past as a result of testing positive for alcohol. Now, all employers with more than 15 employees must determine if that individual is capable of performing essential functions of the position offered with reasonable accommodation. Some experts have suggested that, in light of the inherent problems associated with pre-employment alcohol tests, employers should now consider eliminating such tests altogether.

Until enactment of the ADA the main federal law protecting handicapped individuals against discrimination was the Vocational Rehabilitation Act of l973, which applied to government contractors and employers who received federal assistance. Today's numerous state and federal anti-discrimination laws, including the ADA, mean that all companies must follow strict procedures to ensure that their treatment of alcoholic employees conforms to the law, since these workers are entitled to reasonable accommodation and protection from discrimination on the basis of their physical handicap of alcoholism. Employers may still prohibit the use of alcohol on the job and require that employees not be under the influence of alcohol when they report to work. Additionally, workers who behave or perform poorly or unsatisfactorily due to alcohol use may, like other workers, be fired or reprimanded. The ADA does not protect workers who drink on the job, or current abusers who cannot perform their jobs properly or who present a direct threat to the property or safety of others.

Reasonable accommodation of an alcoholic often consists of offering the employee rehabilitative assistance and allowing the opportunity to take sick leave for treatment before initiating disciplinary action. To be safe, even if the employee refuses treatment, documentation must show that repeated unsatisfactory performance took place before a termination decision is made.

In one recent case, for example, a company was found liable for not offering leave without pay for a second treatment in a rehabili- tation program. The judge commented that one chance is not enough, since relapse is predictable in the treatment of alcoholics. In another case, the judge outlined a series of steps an employer must take to avoid violating the law. His guidelines are instructive:

• Offer counseling.

• If the employee refuses, offer a firm choice between treatment and discipline. If the employee chooses treatment, the employer cannot take any detrimental action during a bona fide rehabilitation program.

• In case of relapse, automatic termination is not appropriate, but some discipline short of discharge may be imposed.

• Before termination, determine if retention of the worker would impose an undue hardship on the company. If removal is the only feasible option, the company must still evaluate whether the alcoholic condition caused poor performance; if so, the company should counsel and offer leave without pay first.

TIP: An employee assistance program can help your company prove that it is fulfilling its legal requirement of reasonable accommodation. Such programs can protect employers from discrimination complaints and should be implemented whenever possible. Some state laws require that an employer's group health plan include alcohol rehabilitation programs.

Counsel Comment #77: Information pertaining to an employee's participation in a rehabilitative assistance program must be carefully protected to avoid violating a person's privacy rights. Dealing with alcohol problems is difficult and complicated for any employer; yet, they must act professionally and sympathetically to avoid legal exposure. To that end, documenting the problem and the help offered is essential in defending against all charges of disability discrimination and breach of an alcoholic's privacy rights. In those cases where company policies are unambiguous, consistently communicated and enforced, arbitrators generally have upheld disciplinary action for drug or alcohol involvement.

Typically, arbitrators consider the following factors when deciding any drug or alcohol related matter:

1. Whether possession or sale is involved;

2. The type of drug used;

3. If the alcohol or drug-related conduct or sale occurred on company premises;

4. The history of drug or alcohol use;

5. The impact on the reputation of the employer; and

6. The effect on the orderly operation of the employer's business.

Counsel Comment #78: After considering test objectives (to screen applicants using drugs, to test employees suspected of using drugs/alcohol, etc.) companies should adopt a plan and record it in work rules, policy manuals, employment contracts, and/or collective bargaining agreements. This may reduce perceived privacy rights of employees and document company policy. For example, your manual might outline the steps management will take if they suspect that an employee is impaired on-the-job, including immediate testing, how the test will be administered and the consequences flowing from a positive result (such as immediate discharge with no severance or other benefits). If your policy is clearly stated, disseminated to all employees and is administered in a consistent, even- handed manner, the possibility of an employee challenge may decrease. However, failure to apply stated rules and regula- tions uniformly may result in charges of discrimination.

Before adopting a formal plan:

• Consider education and rehabilitation alternatives as well as all legal obligations.

• Determine the scope of the testing program's coverage, which employees or applicants will be tested, under what conditions and the selection of testing facilities.

• Inform workers that employees are not permitted to come to work under the influence of alcohol or drugs, even when consumed off the company's premises. Develop rules to cover off-premises conduct but be aware that invasion of privacy claims rise when off-premises conduct is monitored.

• OSHA requires companies to take affirmative steps when alcohol or on-the-job drug use is suspected. Inform employees that testing for substance abuse may be required to avoid OSHA penalties for employer negligence.

• Since random drug testing may create a legal problem, the same holds true for periodic unannounced searches of employee lockers, pat-down searches of individual employees, and use of undercover personnel to secure information regarding alcohol or substance abuse. Avoid conducting such searches until you have spoken to legal counsel.

Test Results

Companies must be careful of how they test. One worker filed a lawsuit in Louisiana after he was discharged for testing positive for marijuana. The main thrust of his lawsuit was that he had suffered great emotional distress when a company representative was required to stand by and watch as he urinated to provide a sample. He also alleged invasion of privacy under Louisiana law, wrongful discharge, intentional infliction of emotional distress and defamation. The company argued that having a supervisor stand by was the only way to ensure that the test was not faked. However, the worker testified that he was taunted and insulted by the supervisor while taking the test. The jury agreed and awarded him $125,000, which was upheld on appeal based on the theory of negligent infliction of emotional distress.

Companies must also treat test results carefully and handle the results of drug/alcohol tests as they would any other confidential personnel information. Unwarranted disclosure of this information, even within your company, could result in expensive, time-consuming litigation for breach of privacy rights, including defamation, so be careful that the test results are not disclosed to non-essential third parties.

Counsel Comment #79: Establish a separate employee file for testing information and results to minimize disclosure and safeguard employee privacy. Choose correct specimen collection procedures which balance privacy with authenticity. If possible, avoid direct observations of employee urination. A suitable alternative might be, for example, to take the temperature of the specimen immediately after it is provided, since this makes substitution difficult. Outline specimen identification procedures and establish a specific chain of custody to ensure accurate testing. Understand the scientific ways the test could produce an erroneous result.

Be aware that a termination based on a positive test which later proves inaccurate can lead to a multitude of legal causes of action, including wrongful discharge, slander and invasion of privacy. Thus, be sure to hire a reputable testing company, preferably one that carries an "errors and omissions" policy or other insurance protecting your firm from false test results.