Currently there is not a federal law addressing employment-based drug testing for all employees, however the Department of Transportation and Federal Highway Administration and Aviation Department have laws governing testing for industries or positions regulated by them. Some states have laws regulating drug testing for applicants and employees, therefore employers should always check before implementing a drug testing program in any state.
Drug testing programs should have a written policy, along with training for supervisors in detecting potential abuse. Companies can implement a no-tolerance policy or a last chance policy where referral to an Employee Assistance Program (EAP) and successful treatment may be required (state laws may vary on these requirements).
The following is a list of the most common types of testing performed:
- Pre-Employment - Conducted to prevent hiring individuals who use drugs and typically takes place after an offer of employment has been made. Applicants should be notified up front that a company tests all applicants who are offered employment.
- Periodic – Conducted with employees and uniformly administered. These are scheduled in advance so employees know when they are occurring. Some employers conduct on an annual basis, and sometimes in conjunction with an annual physical for physically demanding jobs.
- Reasonable Suspicion - Conducted when a trained supervisor or company official observes an employee’s behavior or appearance that is typically characteristic of alcohol and/or drug use. The observable signs and symptoms should be documented. Arrangements should be made to drive the employee to a facility to be tested and the employee should not be allowed to return to work until the results come back.
- Random - Conducted with employees on an unannounced and unpredictable basis. This type of testing requires a selection that is truly random and can be accomplished through a computer generated program so that each employee has an equal chance of being selected for testing.
- Post Accident – Conducted when property damage or personal injury results from accidents. Employers should define the circumstances under which a test will be required. For example, verbiage should be added to explain that testing will only occur post-accident if there is a reasonable basis to suspect that drug and/or alcohol use contributed to the accident, per OSHA anti-retaliation rules.
- Return-to-Duty - Conducted for individuals who tested positive and/or participated in a rehabilitation or treatment program and is a condition of returning to work.
- Follow Up – Conducted periodically after an employee has returned to work (after rehabilitation or treatment program) for a specified period of time in order to ensure the employee remains drug-free. Tests are typically conducted on an unannounced and unpredictable basis.
A good drug testing program will contain the following elements:
- Full disclosure to employees. The written substance abuse policy should be communicated to every employee.
- Testing by competent professionals. Many occupational health clinics and other health care providers supply drug testing services and should be gold standard – meaning the labs should be certified and provide comprehensive MRO services.
- Confidentiality. Test results and subsequent follow-up action should be shared only with those that need to know.
- Supervisory training. All supervisors and managers should be trained in the provisions of the program and in the recognition of the signs of drug use.
- Help for those in trouble. Often, employers will give a second chance to employees discovered to have a drug problem, provided the employee seeks and provides proof of ongoing professional help. Employee assistance programs often come into play in providing rehabilitation. More frequent (or random) testing is usually performed during the rehabilitation period.