This is the second article in HR Law Insider’s trilogy on Sex and Drugs and Rock and Roll. Drugs are pervasive in American society. Because of this fact, business owners all too frequently encounter impaired employees and/or employees they suspect are using drugs or alcohol. What is the best way to deal with the problem while staying within the confines of the law? Read on.
HAVE AN UPDATED DRUG AND ALCOHOL POLICY
Every business should have a policy prohibiting being impaired at work or using illegal substances. Such a policy discourages impairment, allows for the discipline and/or termination of impaired employees, and helps protect against third party claims should an impaired employee injure someone or otherwise engage in misconduct.
Society is constantly changing and so too are the laws regarding drugs and alcohol. For example, medical marijuana is changing the landscape of what is acceptable both within and outside the workplace: http://hrlawinsider.com/2015/02/medical-marijuana-and-the-workplace-the-straight-dope/.
Therefore, as with other workplace policies, employers should conduct self-audits from time to time to ensure their policies are current and compliant with existing laws.
WHETHER TO DRUG TEST
Should every business drug test? No. Many businesses do not believe they have a problem, do not wish to incur the cost or administrative burden, and/or feel that drug testing is too invasive on their employees’ lives.
Such a viewpoint is perfectly fine. However, I encourage most employers to at least have a policy that gives them the option to test for drugs and alcohol. This arguably gives a company the best of both worlds: it is not required to test anyone, but if an unexpected situation arises where a company would like to test because it suspects there is an impaired employee on duty, it can do so.
Of course, certain employers are required to drug test applicants and employees. The United States Department of Transportation and Federal Aviation Administration, among others, require drug testing of certain employees (e.g. drivers with commercial drivers licenses, employees working on airplane equipment).
ARIZONA EMPLOYERS WHO CHOOSE TO HAVE A POLICY SHOULD FOLLOW A.R.S. 23-493
Arizona has a “safe harbor” statute that provides certain protections to employers who drug test employees. Thus, if your business wants to have the option of testing employees, it is wise (and easy) to comply with the following:
23-493.04. Testing policy requirements
A. Testing or retesting for the presence of drugs or alcohol by an employer shall be carried out within the terms of a written policy that has been distributed to every employee subject to testing or that has been made available to employees in the same manner as the employer informs its employees of other personnel practices, including inclusion in a personnel handbook or manual or posting in a place accessible to employees. The employer shall inform prospective employees that they must undergo drug testing. The written policy shall include at least the following:
1. A statement of the employer’s policy respecting drug and alcohol use by employees.
2. A description of those employees or prospective employees who are subject to testing.
3. The circumstances under which testing may be required.
4. The substances as to which testing may be required.
5. A description of the testing methods and collection procedures to be used.
6. The consequences of a refusal to participate in the testing.
7. Any adverse personnel action that may be taken based on the testing procedure or results.
8. The right of an employee, on request, to obtain the written test results.
9. The right of an employee, on request, to explain in a confidential setting, a positive test result.
10. A statement of the employer’s policy regarding the confidentiality of the test results.
B. Within the terms of the written policy, an employer may require the collection and testing of samples for any job-related purposes consistent with business necessity including:
1. Investigation of possible individual employee impairment. “Impairment” means symptoms that a prospective employee or employee while working may be under the influence of drugs or alcohol that may decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, including symptoms of the employee’s speech, walking, standing, physical dexterity, agility, coordination, actions, movement, demeanor, appearance, clothing, odor, irrational or unusual behavior, negligence or carelessness in operating equipment, machinery or production or manufacturing processes, disregard for the safety of the employee or others, involvement in an accident that results in serious damage to equipment, machinery or property, disruption of a production or manufacturing process, any injury to the employee or others or other symptoms causing a reasonable suspicion of the use of drugs or alcohol.
2. Investigation of accidents in the workplace. Employees may be required to undergo drug testing or alcohol impairment testing for accidents if the test is taken as soon as practicable after an accident and the test is administered to employees who the employer reasonably believes may have contributed to the accident.
3. Maintenance of safety for employees, customers, clients or the public at large.
4. Maintenance of productivity, quality of products or services or security of property or information.
5. Reasonable suspicion that an employee may be affected by the use of drugs or alcohol and that the use may adversely affect the job performance or the work environment.
C. In addition to the provisions of subsection B, employees or groups of employees may be required to undergo drug testing on a random or chance basis.
D. If an employer institutes a policy of drug testing or alcohol impairment testing under this article, all compensated employees including officers, directors and supervisors shall be uniformly included in the testing policy.
E. Nothing in this article shall be construed to encourage, discourage, restrict, limit, prohibit or require on-site drug testing or alcohol impairment testing.
Certain employers are required to test employees for drugs and alcohol, but most are not. Even if your company is not required to test and does not currently intend to test, it is nevertheless prudent to consider having a policy which provides for the option of testing. If your company elects to have such a policy, it is not required to follow ARS 23-493; however, it should follow this statute because of the safe harbor benefits the statute provides (e.g. immunization against certain kinds of lawsuits).
The most common situation I encounter is when a company suspects an employee is impaired, but is unsure of what to do. In Arizona, there is no requirement that an employer have a drug testing policy in order to test that suspect employee. However, without a written drug testing policy, the risk of mistakes and employee claims rises; better to have a policy and procedure in place — an easy thing to do — rather than to wing it on the fly.
This HR Law Insider video illustrates the myriad of problems associated with drug and alcohol use courtesy of “The Dude” and one of my favorite rock and roll bands — Creedence Clearwater Revival: