Practice Management: Workplace Drug Use

Creating a drug-free workplace policy

An employee who is misusing drugs can threaten your bottom line in many ways: higher absenteeism; lower productivity; increased losses due to theft; and costly accidents that spark lawsuits. The problem of illicit drug use has become more prevalent in recent years due to the escalation of opioid addiction and the legalization of marijuana on the state level.

The number of U.S. employees testing positive for marijuana, amphetamine and heroin has increased over the last three years to a 10-year high, according to the 2016 annual report from Madison, New Jersey-based Quest Diagnostics, a company that tracks such matters. Roughly four percent of employees who are tested now fail their urine drug tests. “We are seeing a real uptick in the number of employees testing positive for drug use,” says Nancy N. Delogu, shareholder in the Washington, D.C. office of Littler Mendelson, a law firm that defends employers in labor disputes.

For employers, the risk is clear. “Workplace drug abuse is costly in terms of lower productivity, higher tardiness and absenteeism, greater use of medical benefits, and increased incidents of pilferage and shrinkage,” says Dee Mason, president of Working Partners, a consulting firm based in Canal Winchester, Ohio.
On-the-job accidents can also lead to higher worker’s compensation costs. “A person who is abusing drugs is more than three and a half times as likely to have an accident on the job, and five times more likely to have an off-the-job accident that impacts workplace performance,” says Mason. “Some 47% of workplace accidents that result in serious injury and 40% of those that end in death have alcohol and other drugs involved.”

These accidents, in turn, can spark costly lawsuits. “It is critically important for any business to protect its employees and the public,” says Joe Reilly, who runs his own drug testing consulting firm in Melbourne, Florida. “At smaller companies especially, one accident can be devastating.”

Marijuana, Opiates Drive Problem

What’s driving the upsurge? The No. 1 culprit is marijuana. “More states are legalizing marijuana for recreational and medical use,” says Calvina Fay, executive director of the Drug-Free America Foundation and founder of the National Drug-Free Workplace Alliance. “This has helped to normalize the drug and make it socially acceptable.”

If your state has legalized marijuana for recreational or medical use, or is expected to do so, you may be wondering how the conflict between federal and state law will affect your ability to test for, prohibit the use of or discipline employees for marijuana use. “It is still legal to test for marijuana in every jurisdiction,” says Delogu. “And it is still legal to decline to hire or employ workers who use marijuana for recreational purposes.”

One caveat, says Delogu: If you don’t want to know if your employees are using marijuana, don’t test for it. “Knowing that someone uses marijuana and failing to take steps to ensure that he or she doesn’t work while impaired could lead to liability if the employee does something that harms a third person,” she says.

As for medical use of marijuana, employers need to become familiar with state law. In some states, employers are expected to accommodate medical marijuana use. “Terminating the worker following a positive test without evidence of impairment could be risky,” says Delogu. “In New York, for example, if marijuana is being used for medicinal reasons, the employer might have to determine whether it could accommodate that worker in some way so as to permit effective work.” (To date, no court has held that an employer must accommodate such use).

The second driver behind increased drug use and misuse in the United States is pain pill abuse. “The opioid epidemic has become a significant issue for small- and medium-sized employers over the past two years,” says Donna R. Smith, a Tampa Bay-based regulatory compliance officer with Workforce QA, a third party administrator of drug-free workplace programs.

The 2016 Quest survey also revealed the fifth straight year of increases in the detection of amphetamines and heroin in urine testing.

Protecting Your Practice

In order to protect employees and patients, practices should have a formal, written “Drug and Alcohol Abuse Prevention Policy.” The Institute for a Drug-Free Workplace recommends that businesses tailor the policy to their individual needs, while including three key components: Why the company established the policy; what precisely is expected of employees; and what the consequences are for violations. Here is an example offered by the Institute:

1. [Company] is committed to protecting the safety, health, and well-being of its employees and all people who come into contact with its workplace(s) and property, and/or use its products and services.

2. Recognizing that drug and alcohol abuse pose a direct and significant threat to this goal, [Company] is committed to ensuring a substance-free working environment for all of its employees.

3. [Company] therefore strictly prohibits the illicit use, possession, sale, conveyance, distribution, or manufacture of illegal drugs, intoxicants, or controlled substances in any amount or in any manner.

4. In addition, [Company] strictly prohibits the abuse of alcohol or prescription drugs.

5. Any violation of this policy will result in adverse employment action up to and including dismissal and referral for criminal prosecution.

Drug Testing Considerations

Drug testing is another tool that can help protect practices from the costly effects of impaired workers, but there are risks to consider. Requiring drug tests as a pre-qualification for employment and/or using random drug testing is considered, in some states, to be an invasion of employee privacy. Therefore, employers must consult with their State Labor Department for rules on testing. “Some states do have limitations on drug testing,” says Delogu. “So make sure you know and comply with laws in your state.” It can also adversely affect your reputation as an employer.

One way to avoid ethical and legal ramifications of mandatory testing for all employees is to institute a “rea–sonable suspicion” policy. “Many employers have adopted what is called a ‘reasonable suspicion’ policy calling for intervention when the employer suspects the possibility of drug use,” says Delogu. “Different things can constitute reasonable suspicion. Maybe it’s behavior that suggests possible impairment. Or maybe it’s a tip received from a couple of co-workers who are friends of the employee. Or perhaps you learn that an employee was arrested and charged with a drug-related crime.”

If you choose to use drug testing in your practice, it is most effective when integrated as part of a broader workplace drug use policy. “The worst thing you can do is wake up one morning and decide to start testing people,” says Reilly. “If you see a positive, you then have to ask yourself ‘What do I do now?’” On the other hand, if your testing program is part of a more encompassing workplace drug policy, you’ll already know what to do. “Maybe it’s termination, or maybe it’s giving the employee a second chance with counseling and treatment,” says Reilly.

A comprehensive Drug-Free Workplace Program includes a written policy, education on the effects of drugs, supervisor training in spotting and responding to impaired employees, and access to counseling resources, such as an Employee Assistance Program (EAP). While many EAPs gear their services toward large corporations, you may be able to join a local consortium of smaller employers who utilize an EAP at a reduced rate. And the benefits can extend beyond addressing drug use. “People might turn to alcohol or drugs to deal with depression after the death of a loved one or after a marital breakup, or for other reasons,” says Fay. “Having a source to turn to for counseling is a much better alternative than drugs.”

Realize that when it comes to workplace drug policies, one size does not necessarily fit all. “Be mindful that a single policy about disclosure of medications and drug testing may not be suitable for all categories of workers,” says Smith. “Employees in safety critical jobs, who drive vehicles, who interface with patients or go into their homes, may be subject to one set of policies. People in accounting and sales may be subject to another less restrictive set.”

Responding To Drug Use

If an employee admits to on-the-job impairment or fails a drug test, the employer must act. “There are two options,” says Delogu. “One is adverse employment action like termination. Some employers do that from the first offense, especially if they have made it clear from the beginning that employees who need help can come forward for assistance without fear of discipline.”

The second option is to offer the employee an opportunity to get assistance. “This usually involves an evaluation by a substance abuse professional and the opportunity to complete an education and/or treatment program, and then undergo follow-up testing,” says Delogu.

Many counselors urge employers to look seriously at a second chance for first offenders. “If they are dealt with properly, including counseling, they will walk the line and do better. They often turn into—or return to being—excellent, loyal employees,” says Mason.

Prescription Drug Challenges

Bear in mind that many individuals are using prescribed drugs to treat legitimate medical concerns. “Drug tests are for the purpose of discovering illegal drug use, not legal use,” says Delogu. “You will not receive positive test reports for use of a drug that is prescribed by a physician. In such cases, the medical officer will confirm the existence of the prescription and report the test as negative with no details included.”

This can pose a problem: What if an employee is exhibiting erratic behavior as a result of legal use of prescription drugs? In such a case, notes Delogu, you might still have actionable performance issues resulting from drug use. But you might also be required by law, or by your own personal preference, to accommodate the drug user with changes to job duties. Delogu recommends consulting your attorney and conforming to federal, state and local laws.

At the very least, your workplace policy can require employees to report any negative side effects of prescription drugs. “Many prescribed drugs have warnings about operating machinery or driving vehicles,” says Reilly. “Every employer should have a policy with words such as these: ‘If you are on prescribed medication, provide a statement from your physician as to whether or not you can perform your job duties.’ And while you cannot tell people not to take their prescribed medications, you can monitor and respond to resulting performance concerns. If it turns out an employee using a prescribed medication cannot do an assigned job, consider accommodating the employee by reassigning duties or granting medical leave for a set period of time.”

Fay encourages employers to view drug-free workplace policies and programs as an employment benefit rather than deterrent. “The public often thinks of drug-free workplace programs as punitive in nature, but they are actually positive, with an emphasis on education, wellness programs, creating a safe work environment and support for employees dealing with stresses in life.” she says. “You can never completely stop drug abuse in the workplace, but you can tamp it down and minimize its impact.”

Phillip M. Perry is a freelance writer based in New York City.

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