Testing Laboratories
Businesses may be tempted to save money and time by testing prospective employees at the work site. Some states, including Colorado, Oregon and Washington, allow employers to collect and test on site, but doing so risks inaccurate results, legal compliance and extra costs. It just makes sense to have a professional laboratory with experience and expertise collect samples and interpret the results. It also helps reduce the appearance of employer bias and potential challenges to the employer’s testing methods.
On-site testing may also be impractical, both logistically and legally. In Oregon, for example, while employers may lawfully test on site, the laws also require employers to send employees who test positive to a state-licensed laboratory for a second test. Thus, particularly for post-accident or reasonable suspicion testing, avoiding a potential two-step process by sending employees directly to the lab makes practical sense. Similar quality and logistical concerns exist for pre-employment testing.
Choose the Panel
It’s a common misperception — among employers and laboratories alike — that employee drug tests are limited to certain established “panels.” This misunderstanding stems from the federal guidelines set by the Substance Abuse and Mental Health Service Administration (SAMHSA) for federal employees. Its basic panel comprises five illicit substances: amphetamines, THC, cocaine, opiates and phencyclidine, so many labs may offer this as a “standard panel.”
Many private employers choose to follow SAMHSA guidelines, but unless employees fall within specific drug-testing regulations (truck drivers, for example), or the state has specific testing requirements for all employees (Colorado, Washington and Oregon do not), you can choose what drugs you want to include on the panel. And you should.
Collecting information about employees’ use of drugs that you don’t care about is a risky practice for many reasons, including losing insurance coverage or workers’ compensation protection if an employee that you know uses illegal drugs suffers a workplace injury. In other words, as long as you make an informed decision with knowledge of the consequences of not testing for a certain drug (like THC), you can request the lab not to test for it at all.
Positive Tests
Each company’s drug policy should dictate their action following a positive test. If the company’s policy is “zero tolerance,” then a positive result means a “no hire” or immediate termination. A fair employer will also tell the candidate or current employee that the reason was a violation of company drug policies, but additional explanation is typically unnecessary.
Employers can also choose to allow retests, as long as they’re allowed for everyone. Short of immediate termination, other options include counseling referrals or mandatory rehabilitation (if the employer provides this option for all employees who test positive). Private employers are generally not required to give employees a second chance before firing for illegal drug use, unless it has been granted to employees in a policy or written contract.
Training Supervisors
Invest in supervisor training with an expert in the field. Employers should select and designate supervisors who will be trained to determine if “reasonable suspicion” actually exists in order to send an employee for testing. Training should also educate other managers about this topic.
Reasonable suspicion means there are objective reasons for suspecting drug use that are observed firsthand by someone trained to recognize potential signs. This means physical symptoms like glassy eyes, slurred speech and difficulty walking — not that an employee “just doesn’t seem to be herself.”
The drug test must be completed on the day such signs are observed. All managers should also understand that test results must remain confidential. The consequences of disclosure can include lawsuits for invasion of privacy or even defamation if the company publicizes that an employee tested positive when there is reason to doubt the test’s accuracy.
Disability Discrimination
Another pitfall for the unprepared employer are the subtleties of anti-discrimination laws, which should be addressed with employment law counsel. At a minimum, employers should keep employees’ medical information, including drug test results, in a confidential medical file separate from the personnel file. Also be aware that current illegal drug users (which courts have decided includes marijuana because it remains illegal under federal law) are not protected under these laws, but recovering addicts are. Even though employers do not need to accommodate an employee’s illegal drug use or prescription drug abuse, they still must evaluate if the employee has an underlying disability that needs to be reasonably accommodated. Having an experienced HR professional or employment law attorney at the ready will help navigate these issues.
Communicate Your Policy
Many states require drug testing policies to be communicated to employees in writing. If a policy is brand new, some states require — and most encourage — that employees be given reasonable notice of the new requirements (anywhere from 15 to 30 days) before implementation. Having a lawful written policy and having employees sign individual acknowledgements are good practices in any jurisdiction.
An employee handbook is not necessarily the best home for it. A comprehensive drug testing policy includes procedures that do not need to be shared with all employees, such as objective criteria for determining reasonable suspicion or supervisor procedures for sending employees for post-accident drug screening and required documentation.
Some states, including Washington, have tricky laws that may bind employers to promises made in an employee handbook as a matter of law.
Finally, to defend against a wrongful termination claim based on a drug test, it is helpful if your policy explaining the rules and consequences for violations exists as its own document signed by the fired employee.
Follow Your Policy
This sounds simple, but it’s easy to forget. There will be employees for whom you want to make an exception. Don’t. Failing to apply your policy consistently risks an employee argument that the drug test is being used for unlawful reasons, such as to discriminate against disabled individuals or other protected classes, or in retaliation for an employee’s protected activity, such as a leave request, wage complaint or report of harassment.
Following your carefully crafted policy will also help ensure that drug testing is carried out in a fair and lawful manner by not leaving its application to subjective interpretation.
Catharine Morisset is an experienced litigator and partner in the Seattle office of Fisher & Phillips LLP, a national law firm committed to providing business solutions for employers’ workplace legal problems. She and her colleagues counsel cannabis retailers, growers and other supporting industries with operations in California, Colorado, Oregon and Washington in all aspects of employment law. She can be reached at cmorisset@fisherphillips.com.