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Substance abuse and the workplace: When can employers drug test?

August 25, 2017

Substance abuse costs the economy more than each year and can adversely impact workers’ compensation claim costs. Well-written drug testing policies and procedures can help employers protect themselves.

John Shane

SVP, Director of Staff Legal

John leads and manages Zurich’s national Staff Counsel operation of legal professionals. A 30 year... About this expert

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When can employers conduct drug tests?

Substance abuse in the workplace

  • $400B overall annual costs from U.S. substance abuse
  • 9% of employed adults report having a substance abuse disorder
  • Defining and quantifying "illicit drug" use will continue to be complicated by the evolving state of marijuana legalization.

Potential impacts on workers' compensation claim costs

  • Added medical expenses
  • Higher risk of surgery
  • Prolonged treatment plans
  • More days away from work
  • Additional medical concerns 
  • Increased chance of overdose

Well-written drug policies can help protect employers

Collaboration is key. Drug testing policies and any future amendments should be developed collaboratively  with human resources and legal counsel familiar with local laws.

Define the purpose of the drug policy

  • Zero tolerance for specified drugs may be the easiest to enforce and most protective
  • Safety: Prohibits impairment while working may make sense in states with legalized recreational use of marijuana

Potential inclusions in the drug policy

  • Types of testing: pre-employment, during employment and post-accident
  • Employees subject to testing: all or only those in certain jobs
  • Prohibited substances and methods of testing (e.g., DNA, blood, saliva or urine)
  • Consequences and availability of assistance for a positive test

Post-incident drug testing

  • Consider testing when there is a reasonable suspicion that the employee is under the influence and it is contributing factor to the accident.
  • Don't mandate testing for all injuries. Instead, policies should state that the company may test for drugs if there is an accident.

However, qualified legal counsel can help you determine if drug testing may be permitted because:

  • a union agreement allows for drug testing
  • the employee performs a safety-sensitive job (e.g. transportation).

Thorough documentation can be critical

In the event of an employee injury and reasonable suspicion, have two trained managers document their observations.

Observations to document

Appearance

  • Red, glassy or watery eyes
  • Flushed or pale complexion
  • Tired or highly energized
  • Unruly, messy or dirty

Speech

  • Delayed or rapid
  • Slurred and/or incoherent
  • Emotional and/or profane outbursts

Movements

  • Unable to walk or stand
  • Stumbling, staggering or unsteady
  • Diminished coordination

Odors

  • Alcohol
  • Marijuana
  • Chemical

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