Adopting a New Drug & Alcohol Testing Program
GHRR provides both comprehensive drug and alcohol testing and health services for clients throughout the United States. Our service team is dedicated to serving both donor and client with the highest levels of customer service and attention. This section is intended to provide our employer customers with guidance on implementing and operating a drug and alcohol testing program.
Broadly speaking, when it comes to drug and alcohol testing of applicants and employees, employers fall into two categories: regulated (or mandatory) and unregulated (or voluntary).
Regulated Employers / Mandatory Programs
Regulated employers are those that must conduct employee drug testing according to the federal and/or state laws and regulations applicable to their industry. For example, commercial motor carriers must abide by the drug and alcohol testing regulations promulgated by the United States Department of Transportation, or the “DOT.” Additional examples of industries with mandatory drug testing programs include public transportation, public utility providers, healthcare agencies and long-term care facilities.
Unregulated Employers / Voluntary Programs
Generally, unregulated employers are not required by any specific federal or state law to conduct employee drug testing. However, many states do have what are known as “voluntary” or as “Drug-Free Workplace” laws.
There are two sub-categories of voluntary Drug-Free Workplace laws:
1. Incentive-Based Laws: Employers in states with incentive-based drug testing laws are not required to conduct workplace drug testing. If they do decide to test, they are not required to abide by any specific legal requirements when conducting their programs. However, these states, such as Alabama, do provide financial incentives, such as tax breaks, to employers who conduct workplace testing in the manner prescribed by their Drug-Free Workplace laws.
2. Opt-In Laws: Employers in opt-in states do not require employers to conduct workplace drug testing. However, employers who opt to test their employees are subject to the state law governing the manner in which companies may conduct their programs. Each opt-in state’s laws differ, but most have a standard set of requirements for private employers that choose to conduct workplace drug testing, such as requiring the employer to:
- Have written drug testing policies available for review by applicants and employees;
- Provide applicants and employees with notice that they will be subject to a drug test before testing;
- Use methods for testing that are reasonably likely to produce reliable test results; and
- Keep test results and other related information confidential.
Assuming your company is an unregulated employer, you generally have a fair amount freedom in how you conduct your drug and alcohol screening program, including how you respond to drug test results. Any workplace drug and alcohol testing policy should be in writing and made readily available for inquiring applicants and employees.
Several state laws require this, and there may be additional reasons for having a written policy, such as:
- Meeting insurance carrier requirements.
- Defending employee claims of discrimination.
- Executing and enforcing the policy effectively and efficiently.
When implementing a new drug and alcohol testing programs, employers should consider:
- The employer’s goals for implanting a program.
- Employees that will be tested.
- When employees will be tested.
- How employees will be tested;
- The substances employees will be tested for.
- What the consequences will be for employees with positive test results.
Goals of the Program
When choosing to implement a new drug and alcohol testing program, employers should first consider the goals they would like to accomplish with the program and state this in the preamble of their written policy. For example, the policy may be intended to accomplish one or more of the following objectives:
- Promote workplace health and safety;
- Encourage better productivity;
- Help employees who are dealing with drug or alcohol problems;
- Reduce the risk of theft or other misconduct in the workplace; or
- Allow the employer to take advantage of reduced insurance premiums under state drug-free workplace programs.
You should then establish a baseline or starting point for each of your stated goals to allow you to evaluate your program’s effectiveness on an ongoing basis. For instance, if a program goal is to lower workplace accidents and injuries, use accident and injury records to establish a baseline against which you can measure the results of your program at a set time period. Evaluation measurements can be used regularly to identify flaws in the program. Measurements can also identify trends—both positive and negative—to uncover best practices and improvement opportunities.
Developing the Procedures
Employees to be Tested
The next item employers should consider is which classes of employees should be tested. For example, this selection may include all employees, only those in safety-sensitive positions or positions involving a fiduciary duty to the employer, or only supervisor-level employees and higher. It is important for employers to adopt procedures to provide notification to the classes of employees who will be subject to testing well in advance of the first scheduled test date and to provide new applicants and employees with this information prior to testing those individuals.
Next, employers should determine which events will trigger the requirement to screen employees for drug and alcohol abuse. The most common triggering events are discussed below.
Employers often screen new hires for drug and alcohol abuse before they are allowed to start the first day on the job. Pre-employment testing is typically either conducted during the application stage or when the individual has received a conditional offer of employment.
Reasonable Suspicion Testing
Employers typically conduct reasonable suspicion tests when the employer has a legitimate reason to believe that the employee is engaging in the illegal use of drugs or is under the influence of illegal drugs or alcohol at the workplace.
Employers typically conduct random testing typically by selecting a set number of days to test a certain number of employees each month or year and using a computer-generated table to randomly select the employees to be tested on the scheduled days. Employees usually do not receive more than a few hours’ notice that they have been randomly selected for testing.
Post-Accident and Post-Injury Testing
Post-accident and post-injury testing are often conducted after an employee is involved in a workplace accident or injury.
Method of Drug Testing
Additionally, employers should determine what method or methods they will use to test employees for illegal substance use. The most common methods of testing include:
Urine testing is the most common screening method and detects drug use during the previous 24 – 72 hours. It is generally considered to be suitable for all testing reasons – from pre-employment to random to post-accident – and can be performed for a wide range of illicit and prescription drugs.
Hair testing consists of collecting and testing a 100-milligram sample of hair (90 to 120 strands) cut at the donor’s scalp. Since hair samples are obtained in full view of the collector, the process minimizes the likelihood of sample adulteration or specimen substitution.
A 1.5-inch hair sample can allow us to detect drugs used up to 90 days prior to testing, and therefore may be a good choice for employers who wish to determine whether an employee has a long-term or chronic history of abuse.
When compared to urine and hair testing, oral fluid testing is the best method available for detecting recent drug use, as this method typically detects drug use in the previous 48 hours. Drugs take time to metabolize and pass through the system in a urine test, and the same drugs are incorporated as hair grows and it takes time for the drug to be present in the hair above the scalp. However, an oral fluid test will often detect drugs in a donor’s system immediately after use. This makes oral fluid testing ideal for a broad range of testing situations ranging from pre-employment, to reasonable suspicion, to post-accident testing where the employer is interested in assessing what’s in the donor’s system at the time of the drug test collection. Oral-fluid testing also avoids a few problems you may encounter using urine testing. Donors are sometimes unable to void enough urine to be tested by urinalysis. Other donors lack the necessary hair to have a hair drug screen performed. Oral fluid differs in that a specimen is usually easy to collect because almost every donor is able to provide a sufficient sample for testing.
Employers are not limited to one method for all types of testing. For example, you may choose to use urinalysis for pre-employment testing and oral-fluid testing for random or suspicion-based testing. Employers should also consider whether they will conduct split-sample testing and if they will use a Medical Resource Officer and a certified laboratory to confirm positive results, rather than simply relying on the results of an instant drug test.
Substances to be Tested For
Employers should state which substances employees will be tested for under the employer’s testing policy. This affords employees some level of due process and is required for employers in some states. The substances most commonly tested for by employers include:
- Opiates, such as heroin, codeine, oxycodone, morphine, hydrocodone, and fentanyl
- Amphetamines and Methamphetamines
- Phencyclidine (PCP)
Non-regulated employers may wish to mix and match from this list or may choose to customize their testing panels according to their local state laws or particular risks identified for the industry. For example, New York City no longer allows private employers who are not subject to federal regulations to conduct pre-employment testing for marijuana. These employers may want to remove marijuana from their testing panel to avoid unnecessary accusations of failure to comply with the new city ordinance.
Additionally, many employers are concerned with opiate abuse in the workplace given the commonly shared notion that the United States is experiencing an opioid epidemic. These employers may wish to take advantage of what is known as a “extended opiate panel,” which will allow the employer to test for additional opiates that are not screened for under the traditional five-panel test shown above.
Employers should also determine whether they wish to include alcohol testing in their substance abuse programs and, if so, whether employees will be tested for alcohol use on a consistent basis, a random basis, or only when the employer has a reasonable suspicion that the employee is under the influence of alcohol while on the job.
Utilizing Medical Review Officers
Employers often utilize Medical Review Officers (or “MROs”) during the testing process. After receiving a positive result on a confirmation test, the MRO typically reviews the employee's medical history and any other relevant biomedical factors presented to the MRO by the employee. If the employee asserts that the presence of a drug or drug metabolite in his or her specimen results from taking prescription medication, the MRO will review and take all reasonable and necessary steps to verify the authenticity of all medical records the employee provides, such as contacting the employee's physician or other relevant medical personnel for further information.
When GHRR serves as a customer’s service agent, we initiate the MRO process after receiving an initial non-negative result. The MRO will attempt three times to make contact with the donor to discuss the results and to request any relevant prescription information. Based on the information gathered, the MRO will then update the test results and report directly to GHRR for processing. If the MRO does not establish contact with the donor after three attempts, the results will be provided with notation stating that MRO was unable to make contact with the donor. GHRR will report all validated marijuana-positive results regardless of the legality of medical or recreational marijuana in the state of collection. Once available, results will be delivered via your chosen method(s) (email, fax, or online).
Consequences of Positive Results
Finally, employers should consider the consequences of violating the drug and alcohol substance abuse policy and whether they should have procedures for appealing a determination that an employee may have violated the policy.
These are a few items to consider:
- Federal and state employee disability laws may require the employer to conduct a “reasonable accommodation” analysis when employees test positive for lawfully prescribed drugs.
- A few states require employers to conduct a “reasonable accommodation” analysis when employees who are medical-marijuana card holders test positive for marijuana use.
Some states require employers to have an employee substance abuse assistant program available for employees before implementing a testing program and employers often find these programs to be valuable tools to allow them to safely retain otherwise high-performing or well-liked employees.
This publication is provided only for educational purposes; it should not be relied upon as legal advice, and it should not be used, in whole or in part, as a basis for establishing employment practices or policies, nor should it be used for resolving disputes or managing risk. Every reader’s circumstances are unique and legal advice should be obtained only from a lawyer with whom the reader has established an attorney-client relationship. Copyright 2021 © Global HR Research. All material contained within this publication is protected by copyright law and may not be reproduced without the express written consent of GHRR.