TOUGH ISSUES IN MANAGING YOUR DRUG AND ALCOHOL PROGRAM

1. OVERVIEW 1
   1. BACKGROUND 1
   2. GENERAL LEGAL LIABILITY 2
2. LAWS REQUIRING SUBSTANCE ABUSE POLICIES - BUT NOT REQUIRING TESTING 2
   1. TEXAS WORKERS' COMPENSATION ACT 3
   2. DRUG-FREE WORKPLACE ACT 4
3. LAWS REQUIRING SUBSTANCE ABUSE TESTING 4
   1. DEPARTMENT OF DEFENSE REGULATIONS 4
   2. DEPARTMENT OF TRANSPORTATION REGULATIONS 5
   3. NUCLEAR REGULATORY COMMISSION REGULATIONS 6
4. LAWS LIMITING THE EMPLOYER'S FREEDOM TO TEST FOR DRUGS 7
   1. CONSTITUTIONAL LIMITATIONS 7
   2. COMMON-LAW INVASION OF PRIVACY 7
   3. NATIONAL LABOR RELATIONS ACT/RAILWAY LABOR ACT 10
   4. FEDERAL AND STATE DISCRIMINATION STATUTES 10
   5. INDIVIDUAL EMPLOYMENT CONTRACTS 12
   6. CHAPTER 451 OF THE LABOR CODE 12
5. GUIDELINES FOR A LEGALLY-DEFINABLE DRUG/ALCOHOL TESTING POLICY 12
   1. ALLOW A 30-DAY GRACE PERIOD 12
   2. APPLY THE POLICY UNIFORMLY 13
   3. AVOID WITNESSING THE SAMPLE-COLLECTION PROCEDURE 13
   4. EXPRESSLY RESERVE THE RIGHT TO SEARCH; EVEN THEN, GET THE EMPLOYEE'S WRITTEN CONSENT 14
   5. OBTAIN THE EMPLOYEE'S WRITTEN CONSENT TO TESTING 14
   6. GET WRITTEN CONSENT BEFORE TESTING APPLICANTS; CONSIDER POSTING A SIGN 16
   7. IF FIRST PASS RESULT IS POSITIVE, INSIST UPON CONFIRMATORY SECOND PASS 16
   8. IF YOU HAVE REASONABLE SUSPICION, DON'T ALLOW THE EMPLOYEE TO DRIVE HIMSELF 17
   9. MONITOR USE OF LEGAL DRUGS, TOO; REMOVAL OF IMPAIRED EMPLOYEE IS NOT NECESSARILY DISCIPLINE/PUNISHMENT 17
   10. KEEP INVESTIGATIVE AND TEST RESULTS STRICTLY CONFIDENTIAL 18
6. CONCLUSION 19

Abstract

In the 1980s, many private employers began to implement drug testing programs to detect evidence of drug use in their workforce. Undeniably, drug use is a major problem in the United States and does result in workplace accidents. Accordingly, employers have ample incentive to prevent and eliminate alcohol and substance abuse from the workplace. While fewer than 5% of Fortune 500 companies participated in drug testing programs in 1982, by 1988 more than 50% of them did. By 1992, it has been estimated that over 22 million Americans were tested for drugs as part of their job requirements.

Interestingly, the Research Triangle Institute contends that two-thirds of the losses incurred by American business each year due to substance abuse result from alcohol consumption, with only a third tied to the use of drugs and controlled substances. In fact, it has been estimated that alcohol accounts for $89.5 billion in lost productivity, compared to $46.9 billion for all illicit drugs combined. With respect to workplace safety, alcohol is the cause of 40% of industrial fatalities and 47% of industrial injuries. In one such accident, a subway train was derailed, killing five and injuring 200 passengers as a result of the operator being under the influence of alcohol. Despite these statistics, testing for alcohol is rare.

It is nevertheless estimated that drug abusers are absent from work 16 times as often as other employees and are four times as likely to be involved in on-the-job accidents. Unsurprisingly, they file more workers' compensation claims and have three times as many medical claims as other employees. Drug abusers are also more likely than non-users to steal from their employer and from co-workers. Some have argued that, as the practice of drug testing grows, employers who fail to screen will be forced to choose from an applicant pool populated with substance abusers who were rejected by or deterred from applying with employers who have such programs.

Although it is still too early to assess the effectiveness of employer testing nationwide, one employer, Southern Pacific Transportation has reported that, in the first two years of screening, the percentage of applicants and employees testing "positive" for drug or alcohol use dropped from 22.9% to 5.5%. Personal injuries per 200,000 employee hours decreased over a 5-year period from 15.6 to 6.5, and train accidents due to human error dropped from 911 to 96.

According to The Conference Board of New York, New York, workplace drug testing is now "widely accepted" by the nation's largest employers, 49% of whom now actively test job applicants or employees. The incidence of drug testing varies markedly, however, by type of industry. It is highest among gas and electric utilities (79%) and manufacturers (64%), and lowest among finance and insurance firms (13%). Geographically, employer drug screening is more prevalent in the South Atlantic states (58%) than in the North Central (49%) or Northeast (48%) regions, or in the West (41%). BNA Employment Guide, p. 64 (May 28, 1990).

The burgeoning amount and variety of case law regarding employer drug testing illustrates the perils and pitfalls which have frequently accompanied employers' ventures into the field. Drug and alcohol testing is by its very nature intrusive, and is therefore frequently the subject of resentment and challenge. Fortunately, we now have a few years of experience with drug testing, and both employees and labor unions are showing a gradual acceptance of the notion that employers have a justifiable and protectable interest in preserving the safety of the workplace. If structured and administered properly, drug and alcohol testing provide the employer an effective means of enhancing workplace safety, efficiency, and profitability.

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