Drug-free workplace programs, and particularly their drug testing provisions, have been the subject of numerous lawsuits over the past decade. In the public sector, these have involved questions of the right to privacy, the Constitutional freedom from unreasonable searches by the government when an agency acts as an employer, and due process. All employers, even those with well-intentioned programs, can face court challenges to their drug-free workplace policy based on questions of negligence (negligent hiring, supervision, libel, and slander), contract law, and discrimination (racial, sexual, and disability).
Consulting with an attorney experienced with labor and employment matters in your State is always the best course of action to take before implementing a drug-free workplace program. There are, however, some general "rules of the road" that can help you avoid mistakes and lessons learned the hard way by others.
The following suggestions about minimizing legal risks and exposures are summarized from The Drug Enforcement Administration's Guidelines for a Drug-Free Workplace.
- Become familiar with common symptoms of drug use.
- Assume that no one in your organization is immune to the problem of drug and alcohol abuse.
- Know your employees. Become familiar with each one's skills, abilities, and normal performance.
- Document job performance regularly, objectively, and consistently for all employees.
- Keep written records that objectively document the performance of troubled employees. These can be used as a basis for referral for the employee assistance program and/or for testing.
- Take action whenever job performance fails, regardless of whether drug or alcohol use is suspected.
- Know the exact steps to be taken when an employee has a problem and is ready to seek help.
- Obtain appropriate advice when a problem is identified or suspected, and have a witness to any actions when confronting an employee.
- Misuse the drug-free workplace program to discipline employees for unrelated problems.
- Single out any employee or group of employees for scrutiny under the policy. Be consistent in your actions with all employee groups or classes.
- Confront a suspected drug dealer [or user] alone. Always have a witness.
- Implement a verbal policy. An effective policy must be written, circulated, and acknowledged in writing by employees in order to have strong legal standing.
- Treat employees who test positive differently. All employees who test positive must be treated consistently to maintain the integrity of the program.
- Take action against employees based on the results of a drug screen only. Always obtain the results of a gas chromatography/mass spectrometry (GC/MS) confirmation test before taking action.
- Offer rehabilitation selectively.
- Address drug abuse without including alcohol abuse in the policy.
- Implement a policy and program unilaterally if the workforce is represented by a union. The National Labor Relations Act requires that terms and conditions be included in your bargaining agreement and a drug program falls into that requirement.