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Workplace Drug and Alcohol Testing: A Critical Wellness, Safety, and Risk Mitigation Strategy

February 22, 2017

Workplace drug and alcohol testing is essential to the wellness, safety, and productivity of any organization. It is also critical to legal risk mitigation; especially related to potential tort claims such as negligent hiring and claims related to failure to ensure the safety and security of a workplace. 

Why should an organization invest in a drug free workplace policy and program that includes a comprehensive drug and alcohol testing? 

There is a standard Drug and Alcohol Testing Industry argument for workplace drug and alcohol testing associated with return on investment (ROI) and the cost of replacing a non-productive worker caused by drug abuse misuse. 

These ROI formulas and analyses are important but there are more compelling reasons for employers to invest in a comprehensive drug and alcohol testing program for their workplace. 

The first and most compelling argument for workplace drug and alcohol testing is that such a strategy protects and ensures the wellness of an employer’s most valuable asset; its individual employees. Drug and Alcohol testing also supports the fitness for duty and productivity of each employee and the success of the overall business venture. 

Its value relative to health and safety should not be minimized. It is not only the employee that suffers the consequences of drug abuse and alcohol misuse, it is the employee’s family, his or her co-workers, and the organization’s customers. 

Moreover, the value and quality of the product or service offered by an organization can be impacted by drug abuse and alcohol misuse. Last but not least, is the ability of an employer to demonstrate due diligence should a negligence claim be brought that claims drug or alcohol abuse as the cause of the harm litigated.  

Under what circumstances testing should be conducted as part of a comprehensive drug free workplace program? 

An effective drug free workplace policy program should not limit its testing to pre-employment testing. Pre-employment testing is very important since it provides an indication that the candidate does not have the drugs tested on board at the time the specimen is collected. 

However, without additional ongoing monitoring the wellness, safety and productivity of that now hired employee is by no means assured. Thus the need for reasonable suspicion, random, and post-accident testing considering relevant state law and any relevant regulatory requirements based on government mandates. A plan for addressing non-negative drug and alcohol tested candidates or employees is also critical.  

Including an Employee Assistance Program with the capability and a historical track record of successfully providing outreach, encouraging and supporting employee substance abuse and alcohol misuse self-referrals will also enhance an employer’s drug free workplace program. Return to Duty and Follow up testing should be included within its scope. 

What types of testing methodologies should be considered? 

Traditional laboratory based urine drug testing is no longer the only specimen methodology available. Oral fluids laboratory based and point-of-collection, urine point-of-collection testing, and hair testing should also be considered when selecting a methodology or combination of methodologies to meet your program objectives.   Although state and federal law and regulations must be considered and good legal counsel is paramount, there are options and choices that may fit your organization’s culture and program objectives better than others. 

Which drugs should an employer include in its testing program? 

Alcohol testing should not be overlooked, and at least be included in an employer’s policy for reasonable suspicion, random, post-accident events. It may also be very important for return to duty and follow up testing when the employee’s test included alcohol misuse or the employee is determined to be cross addicted to a particular drug or drugs as well as alcohol.  

Regarding drug testing the question of which drugs to test to include in an employer’s testing program is a critically important question. For federally authorized and Department of Transportation testing, the regulations mandate the panel, at the moment a five panel for Marijuana, Cocaine, Amphetamines, Opiates and PCP.  

More recently the synthetic opioids hydrocodone, hydromorphone, oxycodone and oxymorphone have been added to the scope of federal testing. Such expanded panel is also subject to a Notice of Proposed Rulemaking for inclusion in the Department of Transportation testing program under 49 CFR Part 40. It should be noted that no-mandated employers often elect to conduct a 7, 9, or 10 panel test. 

Some employers also test for synthetic marijuana substances such as Spice or for designer drugs. It should be noted that some employers, responding to the medical and recreational marijuana laws on the books have considered or taken marijuana off their testing panel. These employers are not in the majority. 

Such a decision should be approached with caution and only with the advice and counsel of an attorney knowledgeable on the complexities associated with the cannabis conundrum. Such a decision has the potential for undermining the overall effectiveness of an employer’s drug free workplace program.  

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