Drug Testing in the workplace

Drug Testing in the workplace
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Drug Testing In the workplace

About the Presenter Terri L. Dougherty, SHRM-CP, PHR, is an editor on the human resources publishing team at J.J. Keller & Associates, Inc., in Neenah, Wis. She answers questions and writes articles about drug testing and substance abuse, and updates information about drug testing for the Prospera online information guide from J. J. Keller. She also specializes in information about wellness, and oversees the editorial content of the employment law poster and sign lines at J. J .Keller & Associates.

Impact of substance abuse Why drug testing? When to test Types of tests Reasonable suspicion What if it’s positive? Impact of federal laws Discouraging substance abuse: Actions to take Thanks for stopping by today to talk about drug testing in the workplace. Today we’ll address a number of issues relating to drug testing, including the impact substance abuse can make on the workplace, why drug testing is done, when it’s conducted, and what can be done if the test is positive. We’ll look at the different types of tests are done, what to do when you suspect an employee is using drugs, and we’ll also look at some of the federal laws that can impact drug testing,. In addition, we’ll talk about how you can discourage substance abuse and support a drug-free workplace.

State law may dictate: When tests are allowed How a test is conducted State constitution may address: Privacy protections Wisconsin No regulations No requirements Drug testing How many of you currently have workplace drug testing programs? How many are looking into having them? Depending on the nature of your workplace, and where it is located, drug testing may be governed by federal or state law. On the federal side, drug testing is regulated if you are in a certain industry, such as the transportation industry. On the state side, state law may dictate when a test is allowed and how it is conducted, or a state constitution may have a privacy provision that impacts drug testing. Today we’re going to talk about non-DOT drug testing, so those federal regulations do not apply. In addition, workplace drug testing is permissible in Wisconsin. In fact it’s one of 29 states that does not have any laws regulating drug testing. States may regulate when a test is allowed, or how it is conducted. In some states, such as California, employee privacy protections limit drug testing to very specific situations. However, in Wisconsin, employers have much more discretion when it comes to drug testing. While Wisconsin does not regulate drug testing, it does not require it either. However, many employers use drug testing as one way to prevent drug abuse in the workplace.

Impact of substance abuse
Cost: $600 billion each year Accidents Injuries Tardiness Absences Turnover This slide shows why it is a good idea to promote a drug-free workplace: According to the 2014 National Survey on Drug Use and Health from the Substance Abuse and Mental Health Services Administration, illicit drug use costs Americans more than $600 billion per year. In addition, studies have linked illegal drug and alcohol use to an increase in workplace accidents and injuries, as well as worker attendance issues, such as increased tardiness and absences. There are few recent studies on the impact of drug use makes on the workplace, but a study published in the early 1990s found that employees who tested positive on a pre-employment urine drug test had 55 percent more industrial accidents, 85 percent more injuries, and a 75 percent increase absenteeism compared with those who tested negative. Drug use can impair judgment, bring slower reflexes, drowsiness, a distorted sense of time, impaired memory, and impaired concentration, or over-activity and anxiety. Although the effects differ, depending on which drug is used, they all impair the ability of an employee to work safety, accurately, and efficiently.

Why conduct drug testing?
Use illegal drugs 27 million Americans Drug testing, and a strong substance abuse policy, is a good idea because drug use is not uncommon. The 2014 National Survey on Drug Use and Health indicates that 1 in 10 Americans use illegal drugs. That’s an estimated 27 million people.

Drug Use on the Rise The survey also shows that the use of illegal drugs is increasing. The 10.2 percent figure is higher than at any time since The most commonly used illegal drugs are marijuana and the nonmedical use of prescription pain relievers. Drug use is often associated with young people, and drug use is most common among young adults age 18 to 25. However, use of illegal drugs is increasing most rapidly among those age 26 or older. In addition, it is interesting to note that drug users are often employed. According to the 2013 drug use survey, 68.9 percent of illicit drug users were employed either full or part-time.

Conflicting messages relating to marijuana Illegal under federal law Legal in four states and D.C. Legal for medical use in 25 states Terri: According to the National Survey on Drug Use and Health, the most commonly used illegal drug in 2014 was marijuana, which was used by 22.2 million people. Use of the drug is currently increasing, although the rate was holding steady just a few years ago. Much of this growth is occurring in the 26 and over age group. In 2014, 6.6 percent of people in that age group used marijuana, while only 4 percent had used it in 2002. Your employees may be confused by the conflicting messages that are emerging with relation to marijuana use. Marijuana remains classified as a Schedule 1 drug, with no acceptable medical use and high potential for abuse. Yet the federal government allows states to regulate the drug to some extent. The Department of Justice acknowledges that marijuana remains illegal on the federal level, but it has also given states leeway to enforce their own marijuana laws. In August 2013, the Justice Department issued a statement on its marijuana enforcement policy noting that it would allow states to enforce marijuana-related activity in situations that are outside the federal government’s primary enforcement efforts. This gives states the ability to oversee the legalization of medical or recreational marijuana. The drug is now legal for medical use in 25 states and for recreational use in four states and the District of Columbia. Despite this conflict between state and federal laws, employers can prohibit employees from being under the influence of marijuana at work and do not need to allow the drug to be used in the workplace.

Marijuana not viewed as risky. More potent than ever. 1970s 1 percent 1990s 3 to 4 percent Today 13 percent Some strains 25 percent Confusion may also arise over just how risky it is to use marijuana. Another trend shown surveys is that fewer adolescents view the drug as risky. About 75 percent of adolescents across the country do not think there is great risk of harm from using marijuana once a month. However, this view that marijuana is less risky comes at a time when the drug is more potent than ever. The chemical in marijuana that causes the high is THC. In the 1970s, marijuana had at THC content of about 1 percent. In the early 1990s, the THC content was about 3 or 4 percent. Today, it is nearly 13 percent. In addition, some strains advertise a THC content of around 25 percent or even higher. There are also a few changes in the way the drug is ingested. While the drug is often smoked in a hand-rolled cigarette, it can also be smoked in vape pens, or vaporizers. A concentrate of butane hash oil often known as dabs, wax, or shatter may be used. In addition, marijuana can also be ingested in edible form. Foods containing marijuana include gummy candies, cookies, and soda. While this is not a comprehensive list of marijuana-related products, it does serve to show that the drug can come in many different forms. Some do not emit the odor that is often associated with marijuana smoke, so the smell of marijuana is not always there to indicate that the drug is being used. Supervisors and managers will need to be aware of the signs of impairment that can be caused by marijuana in any form.

Negative impact of marijuana Problems with memory and learning Difficulty in sustaining attention, and using information Increased risk of injury More accidents Loss of coordination Lingering effects Terri: While some insist that marijuana is harmless, there are good reasons to ban the drug in the workplace and to ban employees from being under the influence of the drug. Information from the National Institute on Drug Abuse indicates that workers’ smoking marijuana has been linked to increased absences, tardiness, accidents, workers’ compensation claims, and job turnover. A study from the American Academy of Neurology points out that memory and speed of thinking declines with marijuana use. A Fact Sheet from the National Highway Traffic Safety Administration indicates that short-term effects include problems with memory and learning, distorted perception, difficulty in thinking and problem solving and loss of coordination. Heavy users may have difficulty sustaining attention, and difficulty in registering, processing and using information. The drug impairs driving ability, as it decreases car handling performance and increases reaction times The effects of the drug can linger because of the way it is metabolized by the body. While significant impairments are usually present for at least 1 to 2 hours following use of the drug, residual effects have been reported up to 24 hours after use. This means that an employee who smokes marijuana in the evening or on the weekend could still be suffering the effects of such use while at work the next day. [

Prescription drug misuse Prescription painkiller sales increasing Risk of addiction Risk of heroin use Overdose deaths increasing One more trend that we wanted to address is the misuse of prescription medication. The sale of prescription painkillers have risen dramatically; they’ve gone up around 300 percent since The Centers for Disease Control and Prevention reports that health care providers wrote 259 million prescriptions for painkillers in 2012, which is enough to give every American adult a bottle of pills. While prescription painkillers do have a valid medical use, their abuse can be deadly. A person may become addicted to pain pills, and this addiction may lead to another problem - heroin use, as heroin is cheaper and more available than prescription painkillers. Four out of five new heroin users start out misusing prescription painkillers, and abuse of these drugs can have tragic consequences. About 60 percent of deadly drug overdoses are related to prescription drugs and heroin. (CDC, National Center for Health Statistics, National Vital Statistics Mortality file. (2015). Number and age-adjusted rates of drug poisoning deaths involving opioid analgesics and heroin: united States, )

Prevent the hiring of individuals who use illegal drugs Deter drug and alcohol use Appropriately refer employees who have drug and/or alcohol problems Avoid costs associated with accidents, absences, lost productivity, turnover Protect the general public Terri: We’ve established that illicit drug use remains a concern in the United States. We noted earlier that people who use drugs may be employed. Often, these individuals will look for employment at companies that do not have a drug testing policy. A policy that includes drug testing can provide the cost saving benefits mentioned earlier, and can prevent drug abusers from being hired in the first place. It can deter employees from abusing alcohol and drugs, and if individuals are using illegal drugs, it can help a company identify them early and appropriately refer them to an employee assistance program or another place where they can get help. In addition, having a policy of drug testing in place can provide the general public with a positive opinion of a company and give them confidence that employees are working safely. There are also cost-saving benefits to doing drug testing. Some of our clients realize a savings of approximately $10 for every dollar they spend on drug testing. Studies have linked illegal drug and alcohol use to an increase in workplace accidents and injuries, as well as worker attendance issues, such as increased tardiness and absences. Drug use can impair judgment, bring slower reflexes, drowsiness, a distorted sense of time, impaired memory, and impaired concentration, or over-activity and anxiety. Although the effects differ, depending on which drug is used, they all impair the ability of an employee to work safety, accurately, and efficiently. In general, a drug-free workplace program brings positive results. The National Institute on Drug Abuse indicates that a drug-free workplace program can bring improved morale and increased productivity, as well as lower absenteeism rates, fewer accidents, less turnover, and the other benefits shown on this slide. There are few recent studies on the impact of drug use makes on the workplace, but a study published in the early 1990s found that employees who tested positive on a pre-employment urine drug test had 55 percent more industrial accidents, 85 percent more injuries, and a 75 percent increase absenteeism compared with those who tested negative. By implementing a well-run drug-free workplace policy, an employer can reap benefits in the form of increased productivity, profits, customer satisfaction, employee health status and morale. Moreover, having a drug-free workplace can contribute to lowered incidences of absenteeism, turnover, accidents and injuries and the accompanying downtime, and workers' compensation costs. One of the most significant impacts of drug abuse is its overall cost to society and the workplace. According to various studies over the past two decades, workplace drug abuse is estimated to drain somewhere between $60 billion to well over $200 billion from American businesses annually. The U.S. Department of Health and Human Services reports that substance use disorders cost the nation an estimated $276 billion a year, with much of the cost resulting from lost work productivity and increased healthcare spending. For example, medical costs for drug abusers are about 300 percent higher than medical costs for non-abusers. In addition, substance abuse can lead to costly short-term disability claims, and it is estimated that substance abusers file three to five times as many workers’ compensation claims as other employees.

Substance abuse prevention
Company policy Drug testing Training for supervisors Education for employees Now that we’ve looked at why an employer is wise to do drug testing and how large of a problem drug abuse has become, let’s go over what you can do to create a drug-free workplace. Your substance abuse prevention program will be broader than drug testing alone: it involves having a substance abuse policy, doing drug testing appropriately, training supervisors on the signs of substance abuse, and educating employees on the impact drug abuse makes on a person and the workplace.

Your Substance Abuse Policy
Common policy elements “Why” statement Descriptions of prohibited behaviors Consequences for violations Drug testing Who is covered? Testing methods and procedures What happens if there is a positive test or a refusal to test? Return-to-work agreements EAP When it comes to keeping marijuana and other drugs out of your workplace, it really helps to have a strong drug-free workplace policy to provide a solid foundation for a drug-free workplace program. A drug-free workplace validates that you value the health and safety of all your employees, that you are concerned about the impact of unhealthy lifestyle choices, and believe that alcohol or drug impairment impacts all aspects of an employee’s lifestyle. If your company has a union, the policy development may be part of the collective bargaining process. The common elements of a substance abuse policy are listed here. The structure of your policy will depend in part on your workplace culture. Some organizations follow a strong law enforcement model and focus on detection, apprehension, and discharge. Other organizations focus on performance and emphasize deterrence and assistance. Since every organization has unique situations, the policy and program need to be designed to match the workforce and the organization's needs.

Pre-hire Reasonable suspicion Post-accident Return to duty Follow-up
Reasons for testing Pre-hire Reasonable suspicion Post-accident Return to duty Follow-up Random One of the most important aspects of a workplace drug testing policy is being clear on the reasons for testing. There are six common reasons for doing drug testing, and they’re listed here. An employer will want to do a test for drugs before a new hire starts work, and there are also situations when testing is done after the employee is hired. Now we’ll look at these reasons a little more closely.

Reasons for testing: Pre-hire
Conditional offer of employment Do not test before offer is made Legally prescribed medication is OK Medical Review Officer may screen Many employers do pre-hire testing. With a pre-employment test, applicants agree to be tested as a condition of employment. An offer of employment is made contingent on the employee passing the drug test. It is important not to test at the application stage – unless you are prepared to test every applicant – as this may raise discrimination concerns and concerns under the ADA. A pre-hire drug test should be given after a conditional offer of employment is made, but before the employee starts work. The employee has been offered the job, but has not yet started to perform the job duties If an applicant has a prescription for a drug, don’t not hire the employee because of this. Doing so would violate the Americans with Disabilities Act. If you use a lab, the Medical Review Officer may do this screening for you

Reasons for testing: reasonable suspicion
Document the signs: Near-miss accident Unacceptable job performance Abnormal behavior Pattern of erratic behavior Speech Drugs or alcohol found Train your supervisors Employers may also test when they have reasonable suspicion that drugs are being used. A supervisor may see signs and symptoms that lead the supervisor to suspect drug use. This may include a near-miss accident, unacceptable job performance, or abnormal behavior. Reasonable suspicion testing also be based upon a pattern of abnormal conduct or erratic behavior, arrest or conviction for a drug-related offense, or newly discovered evidence that the employee has tampered with a previous drug test. Where reasonable suspicion is involved, the signs and symptoms that an employee is exhibiting should be documented. A company should have clear, consistent definitions of what behavior justifies drug and alcohol testing. If a supervisor sees unusual behavior and suspects that an employee is using illegal drugs, if at all possible that suspicion should be backed up by another supervisor or manager. This is where supervisor training comes into play, as this type of testing is at the supervisor’s discretion. Ideally, the behavior will be seen by two supervisors who are trained in reasonable suspicion of drug use and the signs will be documented.

How long are drugs in a person’s system?
Alcohol — 1 oz. for 1.5 hours Amphetamines — 48 hours Barbiturates — 2-10 days Benzodiazepines — 2-3 weeks Cocaine — 2-10 days Heroin Metabolite — less than 1 day Morphine — 2-3 days LSD — 8 hours Marijuana — casual use, 3-4 days; chronic use, several weeks Methamphetamine — 2-3 days Methadone — 2-3 days Phencyclidine (PCP) — 1 week Source: Department of Labor, “Drug-Free Workplace Advisor,” When conducting a reasonable suspicion test, you’ll want to remember that drugs are in a person’s system for varied amounts of time. I sometimes get questions on Monday about suspected drug use that occurred over the weekend. By Monday, it may be too late to conduct a test that will detect the drugs that were in the system on Saturday, and it may be difficult to prove that a person was impaired on Saturday through drug test results that are obtained on Monday. Another consideration a company should take into account with its drug testing policy are the acceptable and unacceptable levels of drugs for a positive result Drugs are detectable in a person’s system for a certain amount of time after they are ingested. In general, drugs commonly tested for are detectable for several days after use. However, that depends on a number of variables, including metabolic rate, dose, and how it was taken.

REASONABLE SUSPICTION: IS a test warranted?
Associating with known drug user? Unusual smell after break time? Refuses to take a test? Kari: Now let’s take a look at a few situations where “reasonable suspicion” might come into play. What would you do in these situations? First, let’s say that you saw an employee associating with someone who is a known drug user. Would you be able to test this employee for reasonable suspicion of drug use? If this is your only reason for wanting to test the employee, then no, you should not test this employee because of reasonable suspicion of drug use. The so-called known drug user may no longer be using drugs, and just because a person is talking to them does not mean that their conversation has anything to do with drugs. So in this case, no, you could not test because of reasonable suspicion. Let’s say a supervisor notices an employee come back into the building after a break, and there’s an unusual odor around the employee that could signal drug use. Can the supervisor test the employee? The supervisor should talk to the employee and look for other signs of drug use, such as erratic behavior and speech problems, and if those are present document them and test the employee. What if a supervisor sees signs of drug use, and the employee refuses to take a test? In most cases, this can be cause for termination, or other discipline as your policy allows.

Reasons for testing: Post-Accident
Establish guidelines Injury requiring off-site medical care Citations Fatality Property damage Time is of the essence Drug testing is also commonly done after an accident, although each employer must determine exactly what will trigger a post-accident test. For example, an employer could determine that a drug test will always be conducted after an accident resulting in damage to vehicles or property above a certain monetary amount. Other triggers for post-accident drug testing could be injuries that require a person to be removed from the scene for medical care, citations by the police, or fatalities. When doing post-accident drug testing, employers should also have guidelines that specify how soon after an accident testing must occur so the results of the test will be relevant. The Department of Labor recommends that post-accident testing be done within 12 hours. Because alcohol is absorbed and eliminated more quickly than other drugs, post-accident testing procedures may require testing for alcohol to occur within two hours.

Post-Accident Testing: OSHA’s view
Improve Tracking of Workplace Injuries and Illnesses Final Rule Effective August 10, states have six months to update regulations The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. No testing for: You should be aware that new OSHA regulations under the Improve Tracking of Workplace Injuries and Illnesses Final Rule impact post-accident drug testing. OSHA frowns on conducting mandatory post-accident tests without a valid reason. They do not want the threat of drug testing to deter employees from reporting a workplace accident or injury. The anti-retaliation provisions of the new law go into effect on August 10, and there are other provisions that take effect on January 1. OSHA covers private employers, but some states have public employer OSHA regulations, and Wisconsin is one of them. States have six month to bring their laws in line with the new workplace injury tracking rules, and I would expect that Wisconsin would be updating its regulations by next spring. OSHA does allow employers to conduct drug tests to comply with state requirements. Outside of that, it frowns on blanket testing. In a series of FAQs about the Improve Tracking of Workplace Injuries and Illnesses final rule, effective August 10, the Department of Labor stated: The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing. In its comments on the final rule, OSHA indicated that blanket post-injury drug testing policies deter proper reporting. It suggests that post accident drug testing policies be limited to situations where employee drug use is likely to have contributed to the incident, and where there is a reasonable possibility that drug use was a contributing factor to the reported injury or illness. For example, OSHA notes that it would not be reasonable to drug test an employee who reports a bee sting, repetitive strain injury, an injury caused by lack of machine guarding, or a machine or tool malfunction. Bee sting Repetitive strain injury Injury caused by lack of machine guarding Injury caused by machine or tool malfunction

Improve Tracking of Workplace Injuries and Illnesses Final Rule If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this rule would not prohibit such testing. An employer may also follow state law, when required to do drug testing to comply with workers’ compensation or other regulations.

Drug testing allowed, make sure it is not retaliatory Blanket tests may deter proper injury reporting Reasonable possibility Observation Good-faith belief Document reasons for testing OSHA allows drug testing, but wants to make sure it is not retaliatory. A blanket testing policy – testing every time there is an injury – could be retaliatory. So to conduct a post-accident test, there should be a reasonable possibility that drug use contributed to the reported injury or illness. Base the test on observation Have a good-faith belief that the employee is under the influence of drugs or alcohol Document the impairment in writing. It should be observed preferably by two people training in reasonable suspicion of substance abuse.

Reasons for testing: Random
Make the test truly random Each employee in the testing pool should have an equal chance of being selected Employees in a certain job group may be tested Ensure that the selection is random You may want to conduct random workplace drug tests. These unannounced tests may deter drug use. When conducting random tests, make sure that everyone in the testing pool has an equal chance of being selected each time a random test is given. If you would like to only test a portion of your workforce randomly , employees in safety-sensitive positions for example, that is allowed as long as it is not done in a discriminatory manner. Everyone in that job should have an equal chance of being tested randomly. I sometimes get asked if a company can give a specific employee a random test because the employee has been showing signs of drug use. This would not be a random test, but would be a reasonable suspicion test. You could test the employee, but should document the reasons and look for the signs we talked about earlier.

Reasons for testing: Return-to-Duty and Follow-Up
Performed after substance abuse treatment is completed One-time test Follow-up Conducted periodically Specify a time frame for testing Follow federal guidelines, if required Alcohol tests must be job-related and consistent with business necessity Kari: After an employee has completed required treatment for substance abuse, a return-to-duty test is often done. It may also be done after an employee has been absent for an extended period of time. This is a one-time, announced test. An employer may also do follow-up testing on an employee who completes a drug rehabilitation program. These tests are unannounced, and are conducted over a specified period of time. For example, an employee may be periodically tested for six months after returning to work. Every employer’s situation is different, however, so employers will want to specify this period of time in their policy or a written contract with the employee. In addition, some employers must follow guidelines that are specific to their industry. For example, companies with commercial truck drivers must adhere to the alcohol and drug testing rules from the Department of Transportation. It is also important to note that the Americans with Disabilities Act places restrictions on follow-up alcohol tests. They must be job-related and consistent with business necessity.

Amphetamines / methamphetamine Phencyclidine (PCP)
What to test for? Marijuana Cocaine Opiates Amphetamines / methamphetamine Phencyclidine (PCP) Including, but not limited to: Your policy may include a list of substances you’ll test for. Common drugs that are tested for are shown on this slide. You may want to indicate in your policy that employees will be tested for the commonly-abused controlled substances mentioned above, and note that the test will include these substances, but not be limited to those listed. Certain drugs are more common in some areas of the country, and employers will want to be sure to test for drugs that are increasing in use in their area. Talk to your drug testing lab for guidance on the drugs to include in your drug testing panel.

Cutoff Concentrations
Minimum measurement needed for positive result Setting levels too low results in false positives Setting levels too high could result in drug abuse going undetected Check SAMHSA guidelines Work with your lab or drug testing service When going over your drug testing procedures with your lab, you may want to take cutoff concentrations into account. Drug testing determines that a specified amount of a drug or its metabolite is in urine, blood, or an alternative specimen. There is a minimum measurement applied to drug testing for a positive result to occur. This is called the cutoff level, and it is different for each drug. Setting cutoff levels can be challenging, as setting them too low will result in more false positives. For example, poppy seeds could cause a positive result if there is a low cutoff level. If the level is set too high, however, a drug user could go undetected. The Substance Abuse and Mental Health Services Administration, or SAMHSA, can provide some guidelines for setting cutoff levels, and you can work with your drug testing service to make sure that the levels are within an acceptable range.

Testing Methods Urine Breath alcohol testing Blood Saliva Hair
Terri: There are a number of ways to test for substances. The most common is the urine sample test, which detects drugs that were used within the previous few days. Urine is typically not used for an alcohol test, as alcohol passes rapidly through the system. A breath-alcohol test can be used if there is reasonable suspicion that someone is under the influence of alcohol. It should not be used as a random test, unless required by federal regulations for certain industries, because it is considered a medical exam under the ADA. There are some exceptions to this, and we’ll discuss that in a few minutes. Blood tests may be allowed under certain circumstances as part of an accident investigation. However, there is a very short detection period of drugs in the bloodstream, as many drugs are quickly cleared from the bloodstream and deposited into urine. Hair testing provides a much longer drug-use history. Drugs can possibly be detected in hair for 90 days, and possibly as long as three to six months. Special considerations must be taken into account when using testing methods other than urine tests. While technology makes it possible to test for drugs using blood, saliva, and hair tests, you’ll want to be sure that the test results are valid. You may want to document your reason for giving a certain type of test. If someone at the workplace will be administering the test, make sure it is done with the employee’s privacy and dignity in mind.

Consequences for a positive test
Tailor consequences to your workplace needs Refusal to hire Discipline Referral for assistance Termination Your policy should also indicate the consequences of a positive test. These will depend on your workplace needs. They can include: These consequences can include discipline, referral for assistance, or termination. If you offer an employee assistance program or if there are community resources for rehabilitation, you can include that information in your policy as well.

Americans with Disabilities Act (ADA)
Regulatory concerns Americans with Disabilities Act (ADA) Pre-hire testing allowed, after job offer is made. Random tests allowed. Reasonable suspicion alcohol tests allowed. Random alcohol tests not allowed, with very narrow exceptions. While Wisconsin does not restrict drug testing, there are a few federal laws to keep in mind when drug and alcohol tests are conducted. One federal law that may impact drug testing for all employees is the Americans with Disabilities Act. The ADA does allow employers to require employees to take a random drug test or be tested when there is reasonable suspicion of substance abuse. An employer may also do a pre-hire drug screen, but pre-employment testing for alcohol use is not routinely allowed under the ADA. This is because the ADA restricts when employers may request medical exams, and a test to determine an individual’s blood alcohol level is considered a medical exam. Under the ADA, a medical exam can be required only when the test is job-related and consistent with business necessity. The ADA is very specific on this. If an employer has a reasonable belief, based on objective evidence, that a particular employee is unable to perform an essential job function or will pose a direct threat because of a condition, the employer may require the employee to undergo alcohol testing. However, under the ADA, employers may not generally require employees to undergo random alcohol testing, as random testing does not focus on a particular employee or situation. While the EEOC’s enforcement guidance on this prohibits random alcohol tests, there are some narrow job-related exceptions. Employers may conduct periodic alcohol testing pursuant to last chance agreements. This type of an agreement gives a worker a final opportunity to continue employment after committing a serious violation of company policy. Also, an employee in a position of public safety such as a fire fighter, police officer, or private security officer could be subject to a periodic medical examination. In addition, an employee who has been off of work for alcohol rehabilitation could be tested upon return if the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat in the absence of periodic testing. For example, a bus driver who completed rehabilitation could be subject to frequent periodic alcohol tests, but periodic testing of an attorney may not be job-related and consistent with business necessity. Employers may conduct periodic alcohol testing under last chance agreements. This type of an agreement gives a worker a final opportunity to continue employment after committing a serious violation of company policy. Also, an employee in a position of public safety, such as a fire fighter, could be subject to a periodic medical examination. In addition, an employee who has been off of work for alcohol rehabilitation could be tested upon return if the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat in the absence of periodic testing. For example, this might apply to a bus driver who completed rehabilitation, but probably not to an attorney or clerical employee. While the ADA does place some restrictions on alcohol tests, drug testing is not considered a medical exam, so employers may conduct drug testing under their workplace policy, in and in keeping with state and local law

Regulatory concerns: ADA
No need to accommodate medical marijuana use Consider other reasonable accommodations for the underlying disability Medical marijuana: Do not discriminate against a recovering alcoholic or someone with a history of drug addiction Reasonable accommodations may include time to attend counseling, AA meetings Current drug use not protected In recovery: Dolly: Another federal law that employers need to be aware of when it comes to medical marijuana is the Americans with Disabilities Act. The Act gives civil rights protections to individuals with disabilities, and makes it unlawful to discriminate in employment against a qualified person with a disability. Under the law, when an employee with a disability indicates that he or she cannot perform essential functions of a job without an accommodation, an employer must consider reasonable accommodations that can be put in place that would allow the employee to perform the job. One situation that an employer may run into is to have an employee who is a medical marijuana user ask that medical marijuana use be allowed as a reasonable accommodation under the ADA. However, because marijuana remains illegal under federal law, its use is not protected by the act. Employers do not need to accommodate the use of marijuana under the ADA, even if the employee or applicant is a medical marijuana patient. The ADA uses federal law to define illegal drug use, and does not protect the use of medical marijuana. Employers should not simply assume that the employee cannot do the job because the medical marijuana accommodation is not allowed, however. The underlying disability may be covered by the law, and employers will need to consider other reasonable accommodations. The ADA does not protect current illegal drug users, but does protect alcoholics and recovering drug abusers. An employer should not discriminate against an employee who is an alcoholic or who has a history of drug addiction or alcoholism, who is not currently using drugs or alcohol. An employer may need to provide a reasonable accommodation for a recovering addict. This may include time off to attend counseling sessions, or an Alcoholics Anonymous meeting. If the effects of alcohol lead to another illness, an accommodation may be needed for that illness. For example, if an alcoholic employee is depressed, you may need to consider separate accommodations for the depression. An employer should not terminate an employee because he wants to take leave for rehabilitation. Likewise, after an employee returns from rehabilitation, he or she should not be fired because of taking leave for rehabilitation.

Regulatory concerns: ADA
Accommodations may be needed during the drug test Alternate type of test EEOC: 2013 case Applicant had kidney failure Asked about blood or hair testing Told urine test required, not hired EEOC filed lawsuit ADA violation Reasonable accommodation during application and hiring process must be provided, absent undue hardship You also need to be aware that the ADA can impact pre-employment drug tests, as an employee may request an accommodation for the drug test itself. The issue of a drug testing accommodation was at the heart of a lawsuit filed in September 2013 by the Equal Employment Opportunity Commission. A retail store job applicant told a hiring manager he had kidney failure and could not give a urine sample for a drug test because he underwent dialysis. He asked about blood or hair testing, and the hiring manager said she had to discuss this with her colleagues. About two weeks later, she told the applicant that the urine test was required, and he was not hired. The EEOC filed a lawsuit, alleging that this conduct violates the ADA, which requires employers to provide a reasonable accommodation during the application and hiring process unless it can show that providing the accommodation would cause undue hardship.

Non-discrimination statutes
Regulatory concerns Non-discrimination statutes Religion Age Sex National Origin As with any company policy, your drug testing should not discriminate on the basis of race, religion, age, sex, or other protected classes such as national origin. If you do pre-hire testing for a job category, you must test everyone who is given a conditional offer for a job in that category. For example, you could not test only women, or only men.

Unemployment insurance considerations
Fired because of positive drug test Whether or not the employee will be eligible for unemployment insurance depends on the specific situation. Positive pre-employment test An employer may submit information to the Department of Workforce Development if an individual tests positive on a pre-employment drug test, or refuses to test. Pre-Employment Drug Testing 108.04(8)(b), , DWD 131 and (9)(b) An employing unit may submit to the department information that an individual has either tested positive or refused to submit to a test for the presence of controlled substances as a conditional offer of employment: Positive Drug Test If the offer of employment required the individual to submit to a drug test for the presence of controlled substances. The individual was notified prior to testing that the test results may be reported to the department. The individual does not have a valid prescription(s) for the substances he/she tested positive for. The test was conducted or confirmed by a laboratory certified by the substance abuse and mental health services administration of the United States department of health and human services (DHHS). The information must be submitted on form UCB E, Pre-Employment Drug Testing - Employer Reported Positive Result, to the department within 3 business days of the employing unit receiving a positive test result for a controlled substance for which the individual did not have a valid prescription. Form UCB E must be fully completed, signed, required documentation attached and then mailed or faxed to the department. Forms submitted without complete information and required attachments will not be given consideration. Refusal to Submit to a Drug Test If the offer of employment required the individual to submit to a drug test for the presence of controlled substances. The individual was notified prior to testing that the refusal to be tested may be reported to the department. The information must be submitted on form UCB E, Pre-Employment Drug Testing - Employer Reported Refusal to Submit, within 3 business days from the date the individual declined to submit to the test for the presence of a controlled substance. Form UCB E must be fully completed, signed, required documentation attached and then mailed or faxed to the department. Forms submitted without complete information and required attachments will not be given consideration. If it is determined that a claimant declined to take a drug test or tested positive for a drug screen and the offer was rescinded, the department will presume that the claimant refused suitable work without good cause and benefits will be denied. The claimant may rebut the presumption that (s)he refused suitable work without good cause by, among other things, proving that the work was substantially less favorable to the claimant. The claimant is ineligible as of the week the job was to begin and until (s)he has earned wages in covered employment after the week of the refusal equal to at least 6 times the weekly benefit rate that would have been paid had the claimant not been disqualified. Once the claimant requalifies, (s)he is again eligible to receive benefits, but if you are a contributing (taxable) employer, your account is not charged for benefits paid that are based on work performed prior to the work refusal. A claimant who fails a pre-employment drug test may remain eligible for benefits if the claimant enrolls in and complies with a drug treatment program and completes a job skills assessment.

Workers’ compensation considerations
If an employee violates the employer's policy concerning employee drug or alcohol use and is injured, and if that violation is causal to the employee's injury, no compensation or death benefits shall be payable to the injured employee or a dependent of the injured employee. Wisconsin Statutes Annotated, Section The burden of proof is on the employer to establish not only the fact of intoxication, but also a causal connection between the condition and the injury or accident. Haller Beverage Corporation v. DILHR, 49 Wis. 2d 233, 181 N.W.2d 418 (1970). The state’s workers’ compensation law was recently changed to deny benefits to employees whose injury is caused by drug or alcohol use. As it is up to the employer to prove that the injury or death was caused by alcohol or drugs, it is best to document the situation and the results of any drug or alcohol tests.

In court Employee injured at work Prescribed hydrocodone Died of an overdose Blood test showed high levels of hydrocodone, another drug, and marijuana Death resulted from treatment for a compensable injury Death was compensable for workers’ compensation Employers should also be aware that an employer may be liable if an employee who is taking opioids because of a workers’ compensation injury becomes addicted. A Texas Court of Appeals considered a case in which a worker died from an overdose of medication that had been prescribed for a workplace injury. The employee was working for an industrial contracting firm. A bolt weighing several pounds fell and hit him, injuring his shoulder and neck. As part of his treatment, he was prescribed hydrocodone. About five months after the accident, the worker died from an overdose of the drug. The toxicology report showed that he also had another drug and marijuana in his system. The court found that the overdose was accidental. It agreed with the worker’s wife, who theorized that the employee had accidentally taken too many hydrocodone pills because of the side effects brought about by the prescribed medication. He had been acting confused. The court found that the employee had died from an overdose of the medication that had been prescribed for his on-the-job injury, and that his death was compensable for workers’ compensation.

Safeguards Check with your workers’ compensation carrier Which safeguards are in place regarding limits on opioid prescriptions? Because of cases like this, it’s a good idea to contact your workers’ compensation carrier to discuss safeguards that are in place regarding limits on opioid prescriptions.

Review your drug testing panel
Actions to take Review your policy Regulatory issues Regulatory changes Workplace Needs Review your drug testing panel In addition to checking with your workers’ compensation carrier to make sure there safeguards in place regarding opioid prescriptions, you’ll want to take these actions as well. First review your policy. You want to make sure it outlines your expectations for a drug-free workplace, conforms to the regulations we talked about, and fits the current needs of your workplace. Also, make sure it is in line with the latest regulatory changes. You’ll want to look over your post-accident policy and make sure it conforms to OSHA’s expectations. You may want to check with your drug testing service to see if your drug testing panel needs to be updated. Check to see if it will flag drugs that are commonly used in your area

Train supervisors Educate employees Signs of substance abuse
Documenting facts ADA implications Implementing your policy Consistent enforcement Educate employees Your policy Your expectations Consequences EAP program Next, make sure your supervisors are trained. Do they know how to spot the signs of substance abuse, and what to do if they suspect an employee is abusing drugs or alcohol? Make sure they’re aware of your policy, and how to enforce it. Your policy should be uniformly enforced, and consistently followed by all managers. Finally, train our employees. Make sure they are aware of your policy and your expectations. Do they know what would happen if they would use marijuana while on vacation, and then come back to work and test positive? Make sure employees understand your drug-free workplace policy, and why it is in place. If you offer rehabilitation assistance or other help through an employee assistance program, make sure employees are aware that it exists and know how to use it.

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Drug Testing in the workplace

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