Three years ago, I blogged on this topic. Since that time, things have changed. The opioid crisis is still raging (every day more than 130 people die in the U.S. from overdosing on opioids). More states have legalized marijuana for recreation and/or medical use. The job market continues to be tight (the U.S. unemployment rate in May 2019 was 3.6%). All of these factors may impact your company’s drug policy.
What you must do
If your business is subject to federal regulations, such as a transportation business subject to DOT drug-testing rules, you must implement a drug testing policy to be compliant with the law. Find details about the types of businesses required to have drug testing at the Substance Abuse and Mental Health Services Administration (SAMHSA). Ideas on creating a drug policy follows.
What you can do
Most employers can set their own drug policy, as long as it’s fair (i.e., nondiscriminatory). For example, employers can set a drug-free workplace policy, which bans employees from marijuana use (even if such use is legal in the state) in the same manner as alcohol use.
When implementing a policy to test employees, including those who’ve been offered positions pending the outcome of a drug test, the Council on Alcohol and Drugs recommends:
- A written policy
- Access to assistance
- Employee education
- Supervisor training
- Drug testing
In crafting a drug policy, be very careful to avoid problems that could trigger lawsuits against you for invasion of privacy, wrongful discharge, or discrimination. For example, if your state has legalized marijuana, it may be unlawful to discharge an employee solely on the basis of a positive test for marijuana. In fact, permitting the use of medical marijuana (in states where this is legal) may be a reasonable accommodation under the Americans with Disabilities Act. Be sure to have your drug policy reviewed by an employment law attorney.
What you can’t do
Be sure your drug policy aligns with the law in your state (e.g., accommodating medical use). Check the map to see the law in your state. Increasingly, states that permit the use of marijuana for recreational use are prohibiting employers from using positive marijuana tests to be used against an employee or job applicant; in effect, employers there cannot prohibit off-duty marijuana use.
However, look for exceptions (allowing or requiring you to test for drugs and use positive results against an employee) if the job:
- Requires an employee to operate a motor vehicle
- Could adversely affect the safety of others
- Has federal or state law mandates (e.g., employees working for federal contractors explained earlier)
Untreated substance abuse disorder costs employers an average of $7,000 per year in higher health care costs, absenteeism, and turnover costs. Think about your drug policy. Does it promote the health and safety of your employees? Do you provide assistance (e.g., referral services) for substance abuse? Are you up on the latest drug and employment laws in your state? There’s a lot to think about.