Modern employers face interesting challenges in trying to enforce drug testing regulations for their employees.
While there are generally well-documented processes for pre-employment/pre-hiring screenings, there is often less consistency for methods to investigate employee use of illegal substances after they’ve started. These unofficial policies range from “don’t ask don’t tell” where people are trusted to be discrete until something become a problem, to more regular testing and distrust for all.
The former is definitely preferred by everyone except for the company’s lawyers – a jury probably wouldn’t be too favorable if they heard how an employer really didn’t take much effort to monitor activity, hoping something bad never happens. On the other end of things, companies may not have great morale if there was a constant expectation that everyone was always up to no good.
The following are some flaws in many company’s testing programs. Some can be easily corrected by improving policies or consulting with an employment attorney. Others might be worth removing entirely.
1. Inadequate strategies
It’s important to state exactly when and how candidates and employees will be tested and what they will be tested for. Too much advance warning can cause people to take steps to get rid of evidence or try to disable/corrupt/confuse the test results, such as masking chemicals.
Too short of notice might also come as a surprise to people. Some companies screen for alcohol, some for commonly abused drugs, some look for a larger panel of drugs but it’s vital to disclose all.
2. Focusing too much on pre-employment
While a candidate with a history of drug abuse may take a break to make sure they “pass” their entrance test, they may start or return to unhealthy habits as time goes by, which creates liability concerns for the employer. Other employees are even more likely to try illegal substances if they know that the only time testing occurs is before hiring.
3. Inconsistent marijuana policies
States that allow legal access to marijuana for recreational or medical purposes create challenges for companies that prohibit its use. While companies generally aren’t supposed to dictate after-hours conduct, marijuana use could potentially affect performance. Complicating things further is that standards for testing marijuana aren’t always clear – some may indicate active intoxication more than three months after its use. It also may not account for someone with a valid and documented medical need.
4. Prescription drug presences
While typical tests may look for cocaine, heroin, marijuana and similar illegal substances, they may not look for more common but controlled prescription drugs like hydrocodone or oxycotin. These can also be abused and cause safety or behavioral problems, but often receive a pass or aren’t screened for because a doctor legally authorizes them.
5. Paperwork failures
Documentation is vital whatever the circumstances, and some companies may neglect more than a basic summary, if that for testing actions or results. This sloppy practice can hurt them on a legal front.
For instance, showing a consistent pattern of testing for all employees can be a solid defense if a disciplined employee claims that she or he is being specifically targeted. Showing that a correct process was followed with every employee with regards to testing or related discipline can work in a company’s favor.
If someone was directly fired after testing positive for substances, without any discussions about substance abuse treatment options, their first step might be to find an attorney and claim they were improperly treated.
Because employment law changes often, it’s important for HR professionals to always keep up to date on processes and procedures, especially substance testing.