31 Oct What is a Fair & Reasonable Drug Testing Policy? Part II
We are back on the topic of drug screenings for employees. How can we ensure that our policies are fair and reasonable? If you missed part 1 of this series, you can read it here.
In Maryland we have an interesting situation because the use of marijuana for medical purposes is legal. Just across our southern border in Washington D.C. the recreational use of small of amounts of marijuana is legal. So, what should a company do if somebody happens to be a resident of or visit the District of Columbia and partake in what is a legal behavior? Or, what if an employee is using marijuana for medical purposes? Probably the best way to treat this is the same way you would treat alcohol. If your employee is over the age of 21, it is legal to drink alcohol and therefore someone can engage in a legal behavior, but you can prohibit it at work. It does create a safety hazard. It does create a potential liability if somebody is under the influence of alcohol, or if somebody is under the influence of marijuana.
Another question that arises is that there are some medical treatments that are prescribed by a doctor, which can also create a dangerous situation. You want to have a mechanism by which your employees can reasonably notify you that they are on a medication that would endanger themselves, their coworkers, or the general public if they are operating heavy machinery, such as a car or truck. Having a mechanism that allows employees to report that without fear of job retaliation is important.
You can require drug testing as part of an employee safety policy. It is a policy that is applicable when having to deal with dangerous equipment or employees in people’s home. These are insurance questions that often have to be addressed as well.
You have to be very careful with a drug testing policy to ensure that your employees are not discriminated against. You also want to encourage employees to come forward if they have an addiction problem. Addiction is covered under the Americans with Disabilities Act as a qualifying condition which applies to employers with 15 or more employees. So, employers should create a safe harbor. If an employee comes to you as the employer and says I have a problem confessing they think they have an alcohol or drug addiction problem, you want to be able to encourage that employee to be forthcoming so that you can help that employee obtain that treatment. The safe harbor is that as long as the employee comes to you before a drug test is required, or before a drug test procedure has been initiated, then you can manage it. If the employee comes to you after a drug testing policy has been required, that is probably too late. You want to tell your employees up front in the employee manual.
Employers who have a legitimate need, and I think many do, can have a drug testing policy. It needs to be fair and related to the job at hand. As always, you can prohibit the use of drugs and alcohol at work. You can prohibit the possession of illegal substances at your workplace. You should consult an attorney before making a drug testing policy to ensure that you are in compliance with federal, state, and local laws.