Manufacturing employers who seek to prevent work-related drug and alcohol problems, or who must comply with government safety or DOT truck driver regulations, should have a written policy. Such a policy educates both hourly employees and supervisors on what appropriate conduct is required of them, sets uniform discipline standards and helps obtain potential relief, where statutorily available, from workers compensation claims for accidents that are drug or alcohol related.
Such a policy may be needed to challenge unemployment compensation benefit applications by former employees fired for drug or alcohol related misconduct.
Written Policy Sets the Standard
A good policy sets the standard for consistent enforcement and establishes the reasonable privacy expectation level of your employees. Privacy protections for employees are rooted in due process concept of fair treatment—a written policy defines that expectation.
For example, if you want to conduct random tests of your current employees, where the written policy (communicated to those employees) states that their employer is going to conduct random drug tests, an employee’s reasonable expectation would be that he or she will likely be tested periodically. Without such an authorizing policy signed off or acknowledged by your workers, you might be unable to prove what your employer expectations were.
What are the Different Types of Drug Testing?
Think of the physical act of drug testing as a tool rather than the most important part of your policy. Normally, there are two fundamental purposes for employers to initiate drug testing:
- To provide evidence that confirms suspicions about whether or not an employee is impaired and
- To deter the use or sale of illegal drugs at a worksite. For the manufacturing employer there can be a third purpose:
- To minimize or eliminate drug- or alcohol-related accidents. In analyzing your company's type of drug testing need, ask yourself these three questions:
- Which employees will be tested?
- When will they be tested?
- Why will they be tested?
A comprehensive testing program includes testing of applicants, present employees and your contractors. Speaking of contractors, any testing you decide upon must be covered in your policy and in contract documents.
Testing Sets Tone for Employment
Applicant testing sets a tone for employment, even though the impact of the testing may be over once the employee is hired. Applicants will know that you disapprove of illegal use of drugs. Make sure applicants have advance notice that they will be tested. Mention testing in any ads you run.
Place a notice in the personnel office window or on the plant door of the location an applicant must pick up application forms, and make certain that the application form notifies applicants that all offers of employment are subject to satisfactory results on a drug and/or alcohol test.
What types of testing circumstances or triggers are available? Basically, the following well-known types exist in industry:
- Pre-employment—Conducted generally after a conditional offer of employment is made in connection with a physical exam.
- Post-accident—Conducted after accidents where impaired performance could have contributed to the accident.
- Reasonable suspicion—Conducted when a trained supervisor or company official observes behavior or appearance that is characteristic of alcohol or drug misuse. So-called "cause" testing can have different legal burdens of proof placed on the employer depending upon which type of "cause" option you choose.
- "Probable cause" is basically a criminal standard imposing the absolute highest suspicion and degree of burden of proof and generally should be avoided,
- "For reasonable cause" or "for good cause" impose somewhat lesser standards of suspicion, or
- Relaxed "reasonable suspicion" which does not require substantial evidence of "cause."
- Random—Conducted on a random unannounced basis just before, during or after performance of safety-sensitive functions.
- Return-to-duty and follow-up—Conducted when an employee who has violated the prohibited drug or alcohol conduct standards returns to work. Many employers test when employees return from a leave of absence of a specified length. Be sure to specify in your written policy how long a leave triggers the testing. As a rule of thumb, three to five days is probably too short; 12 months may be too long.
- DOT or other government-mandated testing—Interstate motor carriers under the U.S. Department of Transportation (DOT) or safety-sensitive transportation employees who drive commercial motor vehicles requiring a CDL to operate under the Federal Highway Administration (FHWA) regulations face compelled drug and alcohol testing under these regulated workplace trigger circumstances.
- Other events—Conducted upon the occurrence of events such as job promotions, transfers or reassignments. This type of testing is not very common among metal formers. If you plan to add this testing type to your program, you need to specify clearly which type of events will trigger testing so that both employees and supervisors know the precise program triggers and restrictions.
The Most Common Tests
A few thoughts about two of the most common tests—post-accident and random. Many metal stamping and metal forming employers do some form of testing after an on-the-job accident. Testing may be necessary to obtain some relief from benefit assessments for workers' compensation or industrial insurance.
If you plan to have post-accident testing, you should define the type of incident that will trigger testing. Some employers use a dollar amount of damage. Others require testing for injuries which result in the need for off-site medical attention. Make it clear to your supervisors when they should, and should not, require and employee to be tested. Post-accident testing, in one respect, is not much of a deterrent; in fact, it is only triggered after the damage is already done.
Random testing is valuable as a deterrent since employees do not know in advance if or when they will be tested. It might be detrimental to morale, and you should consider that issue in deciding whether to do random testing.
Remember that random testing must be "random," that is, you must select employees for testing in a scientific fashion where there is no opportunity for discrediting selection. Do not use a random testing program as a way to "catch" somebody who has not yet given you cause to test under other aspects of the policy. If your definition of "cause" is too strict, it is time to amend your policy.
Drug and Alcohol Policy Must be Uniform
There are risks of having a drug and alcohol policy. Implementation must be uniform and fair or the policy can be challenged under a variety of legal theories. Random testing always must be conducted scientifically.
Privacy protections of urine collection, testing and reporting and records retention must be strictly maintained. Second opinions may be needed to assure fairness in suspicion cases or possible false positive test results. Disciplinary policies must be tailored to reasonably fit your written policy to minimize the risk of later challenges.
But at the end of the day, the benefits of a good, consistent drug and alcohol testing program that helps to prevent the misuse, sale or consumption of improper substances at your workplace, should outweigh the risks.
Most companies seem to want to write drug and alcohol policies on their own. Even if you do that, be sure to run your final version past your own corporate attorney or, preferably, your labor relations specialist attorney. Drug and alcohol laws change frequently and are different from state-to-state. Also, do not introduce a drug and alcohol policy into a unionized workforce without first bargaining with your union.