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The Disadvantages of Workplace Drug Testing After Legalization

Why Implement a Workplace Drug Policy

There are many valid reasons why a company or organization should implement a workplace drug policy. The reasons range from complying with state and federal regulations to managing healthcare and insurance costs. In order to prevent drug related accidents, companies might include drug testing prior to employment, randomly while employed, and/or after an incident. While the reasons for drug testing are sound, drug testing can be problematic and may not be the best method by itself to accomplish the goals. The solution is to incorporate a program for impairment testing as part of a workplace health and safety policy. In combination with a drug testing program, this should mitigate the limitations inherent in drug testing. It’s helpful to examine each reason and the limitations of conventional drug and alcohol testing.

1. Complying with state laws and federal regulations.

According to the federal Substance Abuse and Mental Health Services Administration (SAMHSA) there is no requirement for most private employers to have a drug-free workplace policy. The exceptions to this are federal contractors and grantees, as well as safety- and security-sensitive industries and positions.

Federal statutes on drug-free workplace policies can be divided into two broad groups, or categories, of legislation. One category includes laws such as the Drug-free Workplace Act of 1988. These laws are designed explicitly to target workplace substance use. They legally compel certain types of employers to take action against drug use in the workplace, action, for instance, like developing a written drug policy.

The other category includes laws designed to protect the basic civil rights of American workers. These statutes provide special legal protections to certain kinds of employees. They set clear limits on how far an employer can go in investigating and establishing consequences for employee drug use. Opposing requirements make complying with laws and regulations problematic. The laws designed to protect civil rights, can conflict with and make it difficult for an employer to conduct workplace drug testing.

Employers considering drug testing should avail themselves of legal counsel. Lawsuits against employers for invasion of privacy, wrongful discharge, defamation, and discrimination are not unusual. The best way to avoid getting drawn into litigation, aside from securing legal counsel, is to make sure that all of your policies are implemented fairly and consistently—in a manner that does not conflict with any federal, state, or local civil rights or workers’ rights laws. A prime example is marijuana legalization, in particular for medical use. Testing for marijuana at the workplace can be problematic and taking any action with regards to an employee’s positive test is even more so.

2. Protecting employees, customers and the public

90% of all workplace accidents are caused by human error. Nationally, almost 9% of working adults have a substance use disorder, including 6.7% with an alcohol use disorder and 1.6% with a cannabis use disorder. Higher rates of substance use disorders are found in industries with younger, male-dominated workforces, like construction. Other industries with easy access to alcohol, like entertainment and food service, also have higher rates. However, substance abuse disorders can be found in workers from all industries. It is obvious that if you are impaired due to drugs or alcohol, you are more likely to make workplace errors.

Unfortunately, drug testing doesn’t test for impairment. And there are causes of impairment that are not drug or alcohol related, such as fatigue, injury, and illness. To address these workplace safety risks, impairment testing can be carried out to ensure an employee, before engaging in high risk activity, is fit for duty.

3. Improve the organization image

Certainly, a company that engages with the public has a vested interest in maintaining its image as a safe place to work. Keeping a drug-free workplace can be a part of that, but equally important is cultivating a culture of safety. Impairment testing as part of an overall safety program can be an important reminder that safety is taken seriously and is part of the job. Impairment testing can be done on the job at any time and in real time, making it easy to incorporate into existing protocols. Drug testing, on the other hand, may be burdensome to conduct on the job site and typically requires a significant waiting time for results.

4. Managing health care and insurance costs

Data from Substance Abuse and Mental Health Services Administration (SAMHSA) shows that employees who use drugs are:

  • 5 times more likely than co-workers who do not use drugs to miss work or show up late

  • 3 times more likely to quit or be terminated

  • 6 times more likely to be involved in an accident at work

  • 5 times more likely to file a workers’ compensation claim (50% of claims involve substance abuse), and

  • More likely to steal, be less productive, be involved in a confrontation, and utilize more healthcare benefits

Drug testing is regulated by law, and you may not be able to test when you want. According to government regulations, drug testing can be performed at these times:

  • Post-offer, pre-employment: This ensures you do not hire a candidate who is abusing drugs.

  • At random: Random drug screens occur without notice. This type of program is effective in that it offers a strong deterrent against drug use. But in order to be effective , it must be conducted on a continual basis throughout the year.

  • With reasonable suspicion: An employee that appears impaired, has exercised poor judgment, or seems “off” may be tested.

  • Post-accident: This helps employers identify whether an accident or injury was caused or influenced by illicit drug use. Many states reduce an employer’s workers compensation liability if an employee’s post-accident drug screen comes up positive.

  • After returning to work: This testing may be conducted after an employee has a positive drug screen that does not result in termination.

Impairment testing, unlike drug testing, can be conducted at any time prior to engaging in any high-risk activity, such as at the beginning of a shift. It not only indicates whether an employee is fit for duty but can provide a reasonable basis for conducting a drug test if warranted. It removes from management the ambiguity associated with identifying impairment because its measures are scientific and objective.

5. Prevent hiring candidates that use drugs.

The value of pre-employment drug testing is limited. Not only can such tests be cheated, but with the increasing legalization of marijuana, its usage becomes more popular and cannot be prevented outside of work.

Drug and Alcohol Testing Don’t Detect Fatigue, Injury or Illness

Another very important point to consider is that if your goal is a safe environment, drug testing only detects the use of drugs. There are other significant causes of impairment, including fatigue, injury, and illness. Fatigued workers are more likely to make safety-critical errors, resulting in injuries. Sleep problems are a factor in 13% of workplace injuries, according to one report. Fatigue was the probable cause or a contributing factor in 20% of crashes investigated by the National Transportation Safety Board. According to OSHA, accident and injury rates are 18% greater during evening shifts and 30% greater during night shifts when compared with day shifts.

Drug Policies are Tricky, Impairment Testing can Help

A workplace safety program which includes drug testing and impairment testing can go a long way to promoting a culture of safety, preventing accidents, and meeting the safety and productivity goals of the company.


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