So you’ve decided to start a drug-free workplace program for your company. But now you have to put together a written drug-free workplace policy for that program.
Or, you’d simply like to review policy requirements and make sure your current policy is up to par.
Well, this post is definitely a good place to start. In it we are going to cover a list of topics that you should include in your company’s drug-free workplace policy. These are the topics that all great drug-free workplace policies cover. And many of the topics are those which bad policies go without.
Good policies cover the necessary topics. But they are also clear, concise, and easily understandable.
Bad policies either don’t cover the necessary topics or are vague in doing so.
One note before beginning: drug-free workplace policies differ from DOT drug and alcohol policies. DOT policies have much stricter rules. The drugs tested for, testing situations, testing “cutoff levels”, who the policy covers, the return-to-duty process, and drug testing labs available for use, all must follow strict and uniform guidelines.
DOT policies are put in place for transportation companies regulated by the federal government. In these cases, the employees impact not only the safety of their workplace but also the safety of the public.
This is not the case with most companies outside of the transportation industry. Drug-free workplace policy is not federally regulated. Instead, it is usually managed at the state level. For this reason, drug-free workplace policy can vary wildly compared with their DOT counterparts.
1. Purpose of Drug-Free Workplace Program
Your policy should explain the purpose behind your company establishing a drug-free workplace.
Your company could have several reasons for having a drug-free workplace program. Maybe they had had issues with employees using alcohol and illegal drugs at work in the past. Maybe there had been an accident of which they ended up liable for.
Regardless, one reason for having a drug-free workplace program is to foster a safer work environment for employees and clients alike.
More Productive Workplace
But your drug-free workplace policy does not have to posture as if the program is some altruistic act. Yes, there are costs of running and managing a drug-free workplace. But the costs of not having a drug-free workplace could very well be greater.
Workplace drug and alcohol abuse can lead to absenteeism as well as diminishing work performance. In short, it can result in a less productive workplace. For employers, that loss in productivity creates a real cash money loss.
Workers’ Compensation Premium Discounts
Another reason possibly to outline in a drug-free workplace policy is the workers’ compensation insurance premium discounts. Many states offer a 5-7% workers’ compensation premium discount for maintaining a drug-free workplace.
And in addition, many insurance companies themselves will offer lower rates for companies maintaining a drug-free workplace.
Depending on the size and structure of the company, employers stand to save quite a bit on workers’ compensation insurance by establishing and maintaining a drug-free workplace. If this savings exceeds the costs of operating a drug-free workplace, then it may be fiscally advantageous to do it.
Factoring in the reduction in workplace accident/injury as well as the increase in productivity, and it may be a cinch.
Shift in Burden of Proof if There’s an Accident
Finally, a drug-free workplace shifts the burden of proof to the employees. Employees who get in accidents and fail post-accident testing have a harder time receiving workers’ compensation benefits. They have to prove that something other than drugs and/or alcohol caused the accident.
And remember, employees take a post-accident test after accidents as part of your drug-free workplace.
The burden of proof is no longer on the employer to prove drugs and/or alcohol were the cause. Instead, the burden falls on the employee to prove that the cause wasn’t their drug and/or alcohol use.
In some states, such as Tennessee, employees have to provide definitive evidence. They state this on the tn.gov website:
Legislation was passed in 2011 that increased the standard of proof required by an injured worker to overcome the presumption from a preponderance of evidence to clear and convincing evidence. This change makes it even more difficult for employees impaired by alcohol or other drugs, while at work, to qualify for workers’ compensation benefits.https://www.tn.gov/workforce/injuries-at-work/employers/employers/drug-free-workplace-program/about-the-program.html
The presumption they refer to is that drugs and/or alcohol caused the accident. While this does seem a bit like legal speak, it’s pretty simple. In the past employees only had to throw some shade on the idea that drugs and/or alcohol were the cause. Now they must definitively disprove it.
You can lay out in your drug-free workplace policy as many or as few of these reasons as you’d like.
2. Who Your Drug-Free Workplace Policy Covers
Your drug-free workplace policy should detail which employees are included in and covered by it. Some companies may include all employees in the program, while others may only include certain positions carrying some risk.
If your company decides to limit the program and policy to certain positions, you need to make sure that the regulations for drug-free workplaces in your state permit it. In all likelihood they do. But you should verify the language used in the regulations.
For example, the regulations in Georgia state that “…Limited testing of job applicants by an employer shall qualify…if such testing is conducted on the basis of reasonable classifications of job positions.” (O.C.G.A. § 34-9-415)
So let’s take the Savannah, GA branch of the Dunder Mifflin Paper Company. Dunder Mifflin Savannah decides that they want a drug-free workplace. Also, they decide to limit testing to the warehouse staff. Georgia would likely consider this “reasonable classifications of job positions.”
But what if they decided that they were going to limit testing to just regional manager and assistant regional manager (my mistake, I mean assistant to the regional manager) positions? Georgia probably would not consider this “reasonable classifications.” Of course, if they only knew who the regional manager and assistant to the regional manager were. Maybe they’d change their stance…
Regardless, make sure you identify and understand the language in your state’s drug-free workplace regulations. And then make sure to state your covered positions in your policy clearly and simply.
3. What is Considered a Violation
You must include in your drug-free workplace policy what is a violation. Covered employees need to know what actions aren’t permitted according to the policy.
Some examples of violations you may include are:
- Using drugs or alcohol at work. This can include legal drugs, illegal drugs, and prescription meds without a prescription
- Having drugs or alcohol at work
- Buying drugs or alcohol at work
- Selling drugs or alcohol at work
- Having drug or alcohol inebriation/intoxication away from work negatively affect work performance, safety of others, or company reputation.
- Using drugs or alcohol away from work, if it negatively impacts work performance, safety of others, or company reputation
- Possessing drugs or alcohol away from work, if it negatively impacts work performance, safety of others, or company reputation
- Acquiring drugs or alcohol away from work, if it negatively impacts work performance, safety of others, or company reputation
- Selling drugs or alcohol away from work, if it negatively impacts work performance, safety of others, or company reputation
- Having a detectable amount of prohibited substances in your system when at work or performing work functions.
- “Prohibited substances” typically include illegal drugs, prescription medications not taken properly, or alcohol
A few other considerations are what behaviors you want to prohibit. Above we highlight using, possessing, attempting to purchase, and selling. You could also include concealing, transporting, dispensing, and distributing.
Also, you may want to include when these activities are prohibited. Are they always prohibited? Or just when certain positions are performing specific work functions? Do they need to be on company property? Or could they be on customer property as well?
This list is not necessarily comprehensive. And you need to be very clear with the language used in your drug-free workplace policy’s violation section. This is one place where it is pretty important to have some legal help.
Also, the Tennessee Department of Labor and Workforce Development includes a sample drug-free workplace policy on their website. You may find it useful to scroll through their sample and read through the violations section. It’s not long. It can give you an idea of what that section should generally look like.
4. Drugs Your Company Will Test For
You need to list out the drugs your company will test for. For example, all DOT drug tests look for five drugs: marijuana, cocaine, amphetamines, opioids, and PCP. This drug test is called a 5-panel drug test, as it tests for the 5 major illegal drugs.
All DOT testing policies will list these five drugs as those being tested for.
But maybe your company doesn’t want to test for marijuana. In several states it is legal now. Depending on your company, you may not want to test for it. In that case, you need not to list it.
Before omitting marijuana from your policy, though, make sure you can still qualify for your drug-free workplace without testing for marijuana.
Other companies may not find a 5-panel drug test sufficient, and they will want to test for more than those five drugs. For example, a 10-panel drug test will look for other drugs in addition to the 5-panel drugs. They will also test for benzodiazepines, barbiturates, methadone, methaqualone, and propoxyphene.
If your company wishes to use a 10-panel drug test, then it needs to list those drugs out in its drug-free workplace policy.
5. Cutoff Levels of Drugs Being Tested For
Most drug testing has cutoff levels for drugs in an employee’s system. If the amount of drug in their system falls below that cutoff, they will receive a negative result. If the amount is above that cutoff level, they will receive a positive result.
For example, DOT drug tests have federally-determined cutoff levels for drugs in the system. Many non-DOT employers will use these cutoff levels for their own drug-free workplace testing.
But in some instances, a company may want any detectable amount of prohibited drug is in their system to be a violation
You need to state clearly what your company uses for their cutoff levels in your drug-free workplace policy. If you intend on using the federal guidelines for DOT drug testing, then specify that. If you intend on treating any detectable amount of drug in the system as a violation, then say that as well.
6. The Type of Drug and Alcohol Testing Used
There are different types of drug tests. They differ in the type of sample they take from the individual.
A few common types are urine, blood, hair follicle, and oral tests. For reference, DOT drug tests use urine specimens.
7. The Testing Situations
The testing situations required for a drug-free workplace program tend to vary from one state to another. But here is a list of typical testing situations for a drug-free workplace program:
Pre-Employment Drug Testing
Pre-employment drug testing is testing of applicants prior to beginning work. Typically you only test an applicant after you have hired them on the condition of a negative result.
In most cases, you must do pre-employment drug testing in a drug-free workplace program. For example, the Tennessee Department of Labor and Workforce Development requires pre-employment drug testing.
Optionally, you can include alcohol testing, but it is unlikely a requirement. If you decide to test for alcohol, though, you must do it consistently all the time. If you don’t, you could find yourself in a discrimination lawsuit.
Post-accident testing is testing after an accident. In almost every instance, post-accident is a required testing situation for a drug-free workplace. If there is an accident that causes an injury, you must do both drug and alcohol testing.
The only delay is for emergency medical assistance.
You need to define what constitutes an accident. In some cases, your state’s drug-free workplace program defines it for you. You will need to check your state’s drug-free workplace regulations to find out.
Also, you need to define who you will test following an accident. Will it be only the responsible party? Or will it be all involved? And if it’s only the person(s) responsible, how will you determine fault and blame?
Again, your state’s program likely lays out who you need to test. Make sure you check on this so that you can add it correctly to your policy.
Fitness-for-duty testing is drug testing that accompanies a fitness-for-duty medical exam.
A fitness-for-duty medical exam is a routine medical exam. These exams are done for job position that requires a certain standard of health in order to carry out the job. An example would be pilots.
Many state drug-free workplaces require fitness-for-duty testing in a couple situations:
- For employees in a federally-regulated safety sensitive position. We have a post covering these safety-sensitive positions for FAA (aviation) and FMCSA (trucking) companies. If you’d like to know more about these safety-sensitive positions, give it a gander.
- For employees in job positions that your company requires to do fitness-for-duty exams already
Reasonable Suspicion Testing
Reasonable suspicion testing is when supervisors test employees who show signs of drug and/or alcohol use. If a supervisor reasonably suspects an employee of current drug and/or alcohol use, they will do a reasonable suspicion test.
In most drug-free workplaces, documentation of the evidence is required. For example, Tennessee drug-free workplace employers must document the observations that led to the test within 24 hours of those observations.
Also, you must highlight the evidence standards for testing in your policy. Observations must be specific, objective, and articulable. Reasonable suspicion is not a hunch. You need to state these standards in your policy.
We have a blog post discussing how you determine reasonable suspicion for testing in detail. If you’d like more insight into the topic, check it out now by clicking the link.
Here are some examples of things that may lead to a reasonable suspicion test:
- Observations of substance abuse
- Physical signs of impairment from substance abuse
- Abnormal conduct while at work
- Erratic behavior while at work
- Significant decline in work performance
- Reliable, credible third-party report of substance abuse
- Signs of drug use at work or while working
- Evidence of drug possession at work or while working
- Evidence of drug dealing at work or while working
In your drug-free workplace policy, you need to state whether you accept third party reports of substance abuse. Also, you need to define what reliable and credible mean.
Random testing is when employers randomly select employees for testing. You include the employees covered by your drug-free workplace policy in the selection.
In some state drug-free workplace programs random testing is required. While in others it is optional. In a Tennessee drug-free workplace, it is optional.
Employers typically have flexibility on the amount of random testing they do. They usually are not required to follow a set schedule for testing.
And random testing is most effective when it is random. There shouldn’t be a set schedule. Employees should not know to expect a random test. In this way, it serves as a deterrent. On any given day they could come into work and have to do a random test.
It is common for employers to do a certain number of random tests per year. But they spread those tests randomly throughout the year.
For DOT random testing, employers must test a percentage of employees for drugs and alcohol each year.
In your drug-free workplace policy, make sure to satisfy any requirements of your state’s drug-free workplace program.
Also, make sure to state your company’s stipulations for random testing. If you test a certain percentage of employees per year, make sure to explain this. If you have four random testing dates spread throughout the year randomly, also explain this in your drug-free workplace policy.
Follow-up testing is testing for employees who have failed a test, rehabilitated, and returned to work.
Usually, these employees will have gone through an Employee Assistance Program (EAP). We will discuss what an EAP is shortly.
Follow-up testing usually involves one or two tests annually for up to five years. Some state drug-free workplace programs require less than this. For example, a Tennessee drug-free workplace must test an employee once a year for two years following their return to work.
In almost all cases, those two years must be consecutive. You cannot do a follow-up test one year, skip the next year, and then do another follow-up test the third year.
Most states’ drug-free workplace programs will say how many years and tests are required for their follow-up testing.
8. Assistance Provided: Employee Assistance Programs
In your drug-free workplace policy you need to explain the assistance your company provides those with substance use issues.
Your company can work with an individual Employee Assistance Program (EAP).
An EAP is an organization that provides support services to employees with work or personal issues. These support services extend to employees with substance use issues.
Employees can reach out to an EAP for help with drug and alcohol use problems without incurring a violation. But they have to do so before they are actually caught in violation.
Reaching out to an EAP after a violation will not change the consequences of that violation.
If your company decides to work with a particular EAP, you need to explain this in your drug-free workplace policy. Also, you can refer to the Tennessee sample policy to see the language they use when explaining the EAP relationship.
If your company isn’t going to work with a single EAP, you still need to provide a resource list for employees. The resource list should include several EAP’s that an employee can contact for assistance.
A few other things you should highlight in your policy are:
- The programs and assistance your EAP or EAP’s in general can provide
- That employees should seek help from EAP’s before any violations occur. Seeking help through an EAP will not necessarily reduce consequences
- Whether the company will cover the cost if the EAP refers the employee elsewhere
- That EAP participation does not affect advancement, employment, or job security, for better or worse
9. Consequences for Violations
You must state in your drug-free workplace policy what the consequences for violations are.
Some companies have a zero tolerance policy. If an employee violates the drug-free workplace policy, they are relieved of their post.
Other companies offer a second chance policy. When employees violates the policy, they have to go through a rehabilitation process before returning to work. After they return to work, they have to take follow-up tests for a certain period of time.
Your company may require that they seek assistance through their EAP. Only after doing so can the employee return to work.
They may also require the employee to go to a Substance Abuse Professional (SAP).
Whoever your company requires the employee to see, that employee must follow through on the treatment and education laid out. Only then can they return to work.
And once they return, they must go through follow-up testing for a couple of years or more.
10. The Appeals Process
In your drug-free workplace policy you also need to include how employees can appeal test results.
They usually have a set amount of time after receiving a positive result to reach out to the medical review officer. They need to offer some explanation for the positive result. Then the MRO will decide whether it holds any weight.
Further, your company can make use of split specimen testing. This is where the initial sample taken from the employee is split in two. One is tested, and the other is stored. The employee can order the lab to test the split specimen.
Usually in a split specimen test, the stored specimen is sent to a different lab for testing. The result of the split specimen test will determine whether the initial positive result is upheld.
The split specimen testing process is used in DOT drug testing. And you have the option of using it in your drug-free workplace program.
Also, you should check your state’s drug-free workplace laws. They may require split specimen testing.
If your drug-free workplace policy covers these 10 topics clearly, your company will be in good shape.
Remember that you need to distribute your policy to all of your employees.
If you have a drug-free workplace policy in place already, does it cover these 10 topics? Or does it include anything we didn’t cover here? We’d love to hear your thoughts. Leave us a comment below.